In a world where technology weaves its threads into every corner of society, the legal realm is no exception. 2023 saw the legal community hit by a whirlwind of activity spurred by the use of generative Artificial Intelligence (AI). United States Supreme Court Chief Justice John Roberts, in his 2023 Year-End Report, painted a vivid picture of AI’s impact on the courts. From courts having to grapple with AI-generated “hallucinations” to law schools tweaking honor codes, the legal community found itself at a crossroads, pondering how to wield the power of generative AI while staying true to ethical obligations.

Everybody likes a shortcut to save time, and lawyers are no different. However, the consensus is clear in New Jersey and beyond: there will be no ethical shortcuts when it comes to employing generative AI.

Lawyers ran into real trouble using generative AI without understanding its limitations. Unknown to some, generative AI systems, like OpenAI’s ChatGPT or Microsoft’s CoPilot, churned out information that veered off the path of accuracy and created what the AI industry calls “hallucinations.” AI “hallucinations” for lawyers are instances where a generative AI system produces, for example, fake cases.

In May 2023, two lawyers submitted a brief in a matter before the Southern District of New York – included in that brief were fake case citations created by their use of generative AI. Ultimately, United States District Court Judge P. Kevin Castel sanctioned the lawyers based on ethical violations as a result of use of generative AI and submission to the Court of papers that included AI hallucinations. In addition to monetary fines, the two attorneys involved were required to submit letters of apology to seven federal and state judges.

More recently, on March 20, 2024, Michael Cohen and his current attorney made news based on the submittal of fake cases using generative AI. Deciding an Order to Show Cause sua sponte entered by the Court, directing Mr. Cohen’s attorney to show cause why he should not be sanctioned, United States District Court Judge Jesse M. Furman ultimately declined to sanction Mr. Cohen’s attorney for providing the fake cases, concluding that “[counsel’s] citation to non-existent cases is embarrassing and certainly negligent, perhaps even grossly negligent. But the Court cannot find that it was done in bad faith.”

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To confront the generative AI conundrum head-on, the Judiciary in New Jersey created the Supreme Court Committee on Artificial Intelligence and the Courts, which includes a broad spectrum of stakeholders to consider both the benefits and potential harm resulting from the use of generative AI.

On January 24, 2024, the New Jersey Supreme Court Chief Justice Stuart Rabner of the New Jersey Supreme Court issued “Preliminary Guidelines on the Use of Artificial Intelligence by New Jersey Attorneys” aimed at assisting New Jersey attorneys in navigating the ethical use of generative AI. The Preliminary Guidelines serve as a beacon for New Jersey attorneys, offering a roadmap for navigating the ethical minefield of generative AI. Covering various core ethical responsibilities, including the duty to (1) be accurate and truthful; (2) uphold honesty and maintain candor in communications; (3) preserve the confidentiality of client information; (4) prevent misconduct, including discrimination; and (5) provide the requisite level of supervision and oversight over lawyers and staff—the guidelines emphasize that AI doesn’t change ethical responsibilities of lawyers. The Preliminary Guidelines caution that: “As with any disruptive technology, a lack of careful engagement with AI could lead to ethical violations, underscoring the need for lawyers to adapt their practices mindfully and ethically in this evolving landscape.”

As part of its vigilance, the New Jersey court also issued a Notice to the Bar on March 25, 2024, announcing the distribution of an anonymous survey to New Jersey lawyers. That initiative aims to glean insights into how generative AI is being used within the state’s legal community, further informing the Judiciary’s understanding of the transformative technology.

So, as lawyers tread this new and uncharted territory, the true test of legal prowess will lie not in the efficiency of our tools, but in the integrity of our actions. As the digital frontier expands, attorneys should navigate it with vigilance, wisdom, and an unwavering commitment to justice through zealous advocacy. The verdict on AI’s role in the legal realm will not be written by algorithms, but by the ethical conscience of those who wield its power.