Merri Baldwin Authors Daily Journal Article Outlining Ethical Reporting of AI Misuse

AI (artificial intelligence) has rapidly developed in recent years, and attorneys are increasingly incorporating the technology into their practices. At the same time, numerous cases highlight the risks of lawyers misusing AI tools in violation of their ethical and legal obligations. This raises an important question: could an attorney have an obligation to report another attorney’s misuse of AI to the Bar in accordance with California Rule of Professional Conduct 8.3?  

Shareholder Merri A. Baldwin, who co-chairs Rogers Joseph O’Donnell P.C.’s Attorney Liability and Conduct Practice Group, authored an article for the Daily Journal (subscription required) analyzing the considerations attorneys must weigh in determining whether Rule 8.3 requires reporting of AI misuse. 

In her article, “The ‘Snitch Rule’ and AI:  When Does an Attorney’s Misuse of AI Trigger Reporting Obligations under California Rule 8.3?” Baldwin discusses the terms of Rule 8.3 and what could be defined as misuse of AI. She also assesses specific examples of misuse. 

“At this point, most of the reported instances of misuse of AI consist of attorneys submitting briefs containing false citations or holdings, fabricated or ‘hallucinated’ by AI,” Baldwin writes. “In some cases, AI has created entirely fictitious cases, while in other circumstances an AI tool has ascribed a false holding to an actual case, or used a real judge’s name but fabricated the holding of an opinion supposedly authored by that judge.” As AI use increases, the nature and prevalence of AI misuse by attorneys will almost certainly increase, with new forms of misconduct made possible by the increased functionality of AI tools.

Baldwin notes that attorneys who knowingly commit criminal acts or engage in deceitful or fraudulent conduct using AI would be at significant risk of discipline, as well as punitive action by the court. If an attorney is aware that another is engaged in such misuse, Rule 8.3 will likely require that the attorney report the other to the Bar; otherwise, that attorney may face disciplinary action. 

Certified as a specialist in legal malpractice law by the State Bar of California Board of Legal Specialization, Baldwin regularly counsels law firms and lawyers on legal ethics and law practice management issues. She handles attorney liability and conduct matters, particularly claims of legal malpractice, breach of fiduciary duty, attorney sanctions and motions to disqualify. Baldwin represents attorneys in disciplinary and admission matters before the State Bar of California disputes. She frequently serves as an expert witness on legal ethics and attorney standards of care.