Over the last year, nearly everyone has heard about the power of using generative AI. My former colleagues at the University of Minnesota Law School have a popular article about its performance on law school exams. But for Colorado lawyer Zachariah Crabill, the use of ChatGPT led to a one-year suspension (90 days to be served and the remainder stayed provided he compiles with the terms of a two-year probationary period).
How did it happen? The lawyer was asked to draft a motion in an area that he was unfamiliar, so he asked ChatGPT to draft it for him. He filed the motion without checking it, and it contained “incorrect or fictitious” cases—or in common parlance, it hallucinated. But even when he realized the mistake, he “falsely attributed the mistakes to a legal intern.” He finally came clean about a week later, but by then it was too late.
The lawyer stipulated that he had violated four ethical rules: 1.1 (competence), 1.3 (diligence), 3.3(a)(1) (candor to the tribunal—violated by making false statements of law to the court), and 8.4(c) (fraud provision). He was also fired by his law firm, as reported by the Washington Post.
It is not surprising to see this type of disciplinary case, and I hypothesize that the number will explode in the next 2-3 years. I do think it is interesting that the disciplinary agency cited a violation of Rule 1.1. The Model Rules added Comment 8 to Rule 1.1 about a decade ago that addresses the issue of technological competence. It states in relevant part that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” As of now, disciplinary agencies are focusing on lawyers who don’t recognize the risks. But one wonders if or when we might sanction attorneys who avoid learning about and using time-saving technology.
Attorney regulators are feverishly working on guidance related to generative AI. Florida has one of the first proposed ethics opinions on the subject, and surely more will follow.
Link to Sanction here: https://coloradosupremecourt.com/PDJ/Decisions/Crabill,%20Stipulation%20to%20Discipline,%2023PDJ067,%2011-22-23.pdf.