Bar seeks comment on ethics opinion over AI-generated errors

The Virginia State Bar is soliciting public comment on a proposed legal ethics opinion pertaining to duties when opposing counsel fails to review and correct outputs from generative artificial intelligence. 

The opinion, Proposed Legal Ethics Opinion 1902, concludes that an attorney must “use professional judgment” in weighing whether to notify the court or disciplinary authority of an opposing attorney’s AI-hallucinated errors, stopping short of drawing a bright-line rule.  

Attorneys must take into account factors including the seriousness of the error and relevant circumstances in weighing whether to report. 

The proposed LEO 1902 also states that ethics rules prohibit attorneys from filing a bar complaint “solely to obtain an advantage in civil litigation” or to “harass opposing counsel.”  

The opinion aims to dissect what it calls “a disturbing trend” of lawyers being caught filing pleadings with AI-generated false quotations and made-up case citations, often called AI hallucinations.  

But when it comes to filing a bar complaint, the opinion states that attorneys are “generally permitted to file a bar complaint though not necessarily required to do so” if an attorney believes opposing counsel violated the Rules of Professional Conduct. 

“Failure to verify AI outputs before filing may potentially violate several Rules of Professional Conduct, including but not limited to Rule 1.1, Rule 1.3, Rule 3.1, Rule 3.3 and Rule 8.4(c),” the opinion states.  

The opinion also notes that an attorney is likely to notice an error like an AI-hallucinated case in an opposing party’s filings due to having to read the findings closely for their own case.  

If an attorney finds an AI-hallucinated case, the opinion encourages the attorney to consider reaching out to opposing counsel directly about the mistake to offer them the chance to take corrective action.  

From there, however, the opinion states that a lawyer who identifies mistakes like false quotations or erroneous citations should bring the issues to the court’s attention. 

“Even a single hallucinated case can be problematic,” the opinion states. “There is risk for example that a hallucinated citation in a brief would become incorporated into a court’s decision if the court neither is made aware of nor independently discovers the non-existent case.” 

Anyone who would like to provide comment on proposed LEO 1902 can submit written comments to VSB Acting Executive Director Janet Van Cuyk by July 10 via email to [email protected]. 

The full text of proposed LEO 1902 can be found at vsb.org.