Florida Bar explores AI guardrails
Artificial intelligence is advancing at a lightning pace as Florida Bar leaders, acknowledging its power to enhance legal practice, are developing more guardrails to address the potential risks.
“The committee recognizes the rapid development of AI and pledges to value the technology’s promise and concerns equally,” Board Technology Committee Chair Karl Klein assured the Board of Governors at a recent meeting in Palm Beach.
The committee coordinates the initiatives of a handful of technology-related panels, including the Special Committee on Artificial Intelligence Tools & Resources and the Cybersecurity & Privacy Law Committee.
Days after Klein updated the board, OpenAI released Chat GPT 5, billing it as “having access to a PhD-level expert in your pocket.” In 2023, Chat GPT 4 wowed the profession by passing a simulated Bar exam in the top 10%.
Critics are giving Chat GPT 5 mixed reviews, with some pointing to basic spelling, geography, and U.S. history errors. They note that when challenged on some errors, Chat GPT 5 generated fake evidence to defend the mistake.
Generative AI’s propensity to “hallucinate” and its ability to produce lifelike audio and video “deep fakes,” are among the legal profession’s many significant concerns.
Bar leaders have been responding for the past several years.
In January 2024, the Board of Governors approved the nation’s first comprehensive guidelines for the ethical use of artificial intelligence in the practice of law.
Among other things, Ethics Opinion 24-1 recommends that a lawyer obtain “the affected client’s informed consent prior to utilizing a third-party generative AI program if the utilization would involve the disclosure of any confidential information.”
The special AI committee requested the ethics opinion and proposed a series of AI-related amendments to the comments to various Bar Rules, including the Ch. 4 Preamble: A Lawyer’s Responsibilities; Rule 4-1.1 (Competence); Rule 4-1.3 (Diligence); and Rule 4-1.6 (Confidentiality of Information), to name a few.
The Supreme Court approved them last August in In Re: Amendments to Rules Regulating The Florida Bar – Chapter 4, Case No. SC2024-0032.
Unlike Bar rules, ethics opinions are non-binding. Comments to Bar rules are considered explanatory.
In February of 2024, the Florida Conference of DCA judges wrote to the Rules of General Practice and Judicial Administration Committee and the Appellate Court Rules Committee, and directed them to consider amendments to Rule of General Practice and Judicial Administration 2.515 (Signature and Certificates of Attorneys and Parties) and Rule of Appellate Procedure 9.210 (Briefs), “or others to appropriately address lawyers’ use of AI in court filings.”
Then Fourth District Court of Appeal Chief Judge Mark Klingensmith, who served as conference president at the time, said appellate judges were growing concerned after seeing Florida lawyers file AI-generated court documents that contain cites to non-existent judicial opinions.
This week, Klingensmith said an RGPJA subcommittee is completing work on a proposal that he is not free to discuss publicly. Should it advance, the Supreme Court would have final say.
Judges are eager to see results.
“Although I’m no longer the president of the Conference of DCA Judges, it’s my understanding that none of the concerns I raised in my referral letter have been alleviated,” Klingensmith said. “In fact, the number of filings our court has seen containing AI misuse has increased over time.”
In a referral letter last year to the Code and Rules of Evidence Committee, AI special committee Chair Gordon Glover warned that deep fakes threatened the “foundational principles of our legal system.”
The “hyper-realistic digital manipulations of audio and video pose a direct threat to the integrity of legal proceedings, as they can be used to create convincing but entirely fabricated pieces of evidence,” Glover warned.
Last October, the Code and Rules of Evidence Committee approved a proposed statutory definition that would be added to §90.951(5) and would state: “‘Generative Artificial Intelligence’ includes any evidence created by a machine-based system that can, for a given set of human-defined objectives, emulate the structure and characteristics of input data in order to generate derived synthetic content including writings, photographs, recordings, images, videos, audio, text, and other digital content.”
The proposal is similar, but without the word “evidence,” that lawmakers adopted as a statutory definition for artificial intelligence in the context of elections.
At the time, Code and Rules of Evidence member Kristina Feher told the Standing Committee on Professionalism that the proposed definition was a “starting position.”
A subcommittee has completed its work, and the Code and Rules of Evidence Committee will finalize the subcommittee recommendation when it meets next in November, sponsors say.
The Board of Governors advised the subcommittee that a voluntary Bar section would likely have to sponsor any proposed legislation. As an arm of the Supreme Court, the Bar does not take positions on potentially controversial issues.
(Originally published on The Florida Bar News: https://www.floridabar.org/the-florida-bar-news/florida-bar-explores-ai-guardrails/)