New York Courts Adopt New Rule on AI Use by Lawyers

Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

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New York Courts Adopt New Rule on AI Use by Lawyers

AI case citation hallucinations are accelerating in frequency, and courts are amping up penalties in turn. Sanctions have reached new heights, and judges have even begun to chastise both the lawyers who submit faulty briefs and their opponents who fail to bring the errors to the court's attention. 

Case in point: On May 20, in an Appellate Division Second Department case, Landburg v. City of New York, Justice Valerie Brathwaite Nelson expressed frustration with the attorney for the appellant, who included the fake cases in his submissions, and the attorney for the respondent, who failed to advise the court of the problematic citations. Justice Nelson informed Respondent’s lawyer that “As an appellate court attorney...there is a responsibility…to notify the court. (I)f you read the brief and looked at the cases, you would have realized it was your responsibility also to alert the court.” 

Similarly, in March in a federal case, Dec v. Mullin, the Seventh Circuit also expressed displeasure with an attorney who failed to identify his opponent’s hallucinated cases: “That opposing counsel also failed to catch these errors and bring them to our attention also gives us pause, albeit to a lesser degree.”

Given the judiciary’s increasing and expanding ire over these types of AI-created problems, it should come as no surprise to learn that  the New York State Unified Court System has taken steps to address the issue by enacting a new rule, Part 161. This rule, which became effective on June 1st, regulates the use of AI by lawyers and parties practicing in New York courts.

It requires that lawyers or parties who seek to use AI to prepare court submissions must “understand that tool's capabilities and limitations.” This understanding includes an awareness that “AI tools, among other risks and limitations, can generate fabricated information or fictitious citations to authority.”Also emphasized was that, as part of the preexisting obligation to certify that submissions do “not contain any false material factual statement or any frivolous legal argument”, lawyers must “carefully review the paper and independently ensure that it contains no fabricated or fictitious cases, statutes, or other material.” The failure to do so may subject an attorney to “sanctions or other remedial action.”

Notably, because lawyers are already required to certify that submissions are accurate, there is no need to disclose the use of AI to assist with document preparation. This is an important acknowledgment, since AI is being integrated into many of the tools relied upon by lawyers to practice law and run their firms. 

Oftentimes, understanding which features are AI-enabled can be difficult, if not impossible, for the average software user. AI development is accelerating at a record pace, and companies sometimes deploy AI on the backend of software to ensure a more streamlined and efficient experience. As a result, software users may not always know whether or not new features are AI-powered. Accordingly, the current approach makes sense, since requiring certification of the specific nature of the software used would be unwise and would subject lawyers to disciplinary action for knowledge outside their realm of experience. 

Finally, the new rule does not prohibit courts from implementing their own rules relating to AI use. However, adoption of Part 161 is encouraged.

The bottom line: If you’re a New York attorney, make sure to read through the rule and familiarize yourself with its requirements. Even if you’re not actively using AI, the tools already in place in your firm may include AI features of which you are unaware, so it’s essential that you understand your obligations, carefully review your work—and that of your opponent, and ensure compliance with the new requirements when submitting your papers to the court. 

Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at 8am, the team behind MyCase, LawPay, CasePeer, and DocketWise.She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.