Lawyers’ growing use of artificial intelligence is front of mind these days, but that shouldn’t overshadow the equally energetic and consequential efforts by the nation’s judges to ethically incorporate AI into their work. The latest state court system to begin AI-related policy work is Georgia, where late last month the state supreme court created the Judicial Council of Georgia Ad Hoc Committee on Artificial Intelligence and the Courts to spearhead that work.
The Georgia initiative, in partnership with the National Center for State Courts, will examine a wide range of topics, including:
- the impact of artificial intelligence on evidence rules
- the impact of artificial intelligence on civil and criminal procedure rules
- the adequacy of current ethical and professional standards applicable to lawyer competency relating to the use of Al by lawyers practicing in Georgia courts, and
- the need for standards and benchmarks for technology vendors to improve Al performance and ensure the transparency and privacy of Al processes
The Georgia committee held its first meeting Oct. 23, 2024. The next day, the State Bar of Georgia announced the formation of its own Special Committee on Artificial Intelligence and Technology. It appears the state bar group will evaluate the state supreme court’s work in this area and make its own recommendations on possible revisions to lawyer ethics rules to address possible harms created by artificial intelligence and other emerging technologies.
Judges should think of AI as a law clerk, who is often responsible for doing a judge’s research. The judge alone is responsible for determining the outcome of all proceedings.
Judges have their own ethics codes and, within them, their own professional obligation to demonstrate technology competence – a fact underlined by recent judicial ethics opinions from Michigan and West Virginia. Included within the judge’s technology competence obligation is the imperative to supervise the legal community’s use of artificial intelligence in their courtrooms.
Michigan Judicial Ethics Opinion JI-155 (Oct. 23, 2023) makes the point:
Judges must not only understand the legal, regulatory, ethical, and access challenges associated with AI, but they will need to continually evaluate how they or parties before them are using AI technology tools in their own docket. This could include the use of basic docket management and courtroom tools (AI transcribing tools) and risk assessment tools (in making decisions on sentencing, pretrial release/bond conditions, probation, and parole). Judges must also understand the science and law relating to electronically stored information and e-discovery. Judicial use of AI must distinguish between using an AI application to decide and using AI to inform a decision.
Not only do Michigan judges have an ethical obligation to understand artificial intelligence technologies, they also have an obligation to adopt measures that reasonably ensure that AI tools are used lawfully in their courtrooms. This is an ambitious mandate in the context of artificial technologies, which are inherently complex, widely in use for numerous law-related purposes, and rapidly changing.
In West Virginia, Opinion No. 2023-22 (Oct. 13, 2023) from the state’s Judicial Investigation Commission offers ethical guidance for judges who use artificial intelligence tools for traditional judicial business such as conducting legal research and deciding contested matters in their courts. The opinion delivers the now-familiar advice to use AI with caution, to “supervise” its outputs as if they had been produced by a human law clerk, and to “never” use artificial intelligence to decide the outcome of a case. “This is because of perceived biases that may be built into the program,” the opinion reads. “Judges should think of Al as a law clerk, who is often responsible for doing a judge’s research. The judge alone is responsible for determining the outcome of all proceedings.”
Similar guidance is being issued across the country in 2024 Numerous state supreme courts and state bar groups have issued guidance or formed task forces to assist the judiciary’s adoption of artificial intelligence tools into its work. Among them:
With these efforts the nation’s judiciary is preparing for a future that is, to a large extent, already here. Seventy-six percent of corporate law departments and 68 percent of law firms in the United States already use artificial intelligence technologies at least once a week, according to the latest Wolters Kluwer Future Ready Lawyer report. And the issues these lawyers are struggling with – lack of trust in generative AI outputs and data privacy concerns – are the same issues that draw the closest scrutiny from judicial officials in published reports to date. As 2024 draws to a close, there’s every reason to believe that the legal community will solve these problems in 2025, making AI a pervasive, welcome, and permanent part of day-to-day law practice.
