LANSING, Mich. (Michigan News Source) – The State Bar of Michigan is urging judges to keep up with advancing technology “including but not limited to artificial intelligence.” The statement comes from a new ethics opinion issued by their Standing Committee on Judicial Ethics. They explain how judicial officers will need to understand how the new technology tools will affect their docket and conduct.

They write, “Judicial officers, like lawyers, have an ethical obligation to maintain competence with and further educate themselves on advancing technology, including but not limited to artificial intelligence…As the use of technology increases, so does the requirement to maintain competence in what is available, how it is used, and whether the use of the technology in question would affect a judicial decision.”

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The opinion goes on to say, “Legal knowledge, skills, thoroughness, and preparation are required for judicial officers to perform their duties. This includes knowing the benefits and risks associated with the technology that judicial officers and their staff use daily, as well as the technology used by lawyers who come before the bench.”

Can AI be an asset?

Although AI can be an asset in the courtroom and legal profession, the committee points out that AI is not always correct or used in the right manner. They explain, “As the legal community has seen, there are times when AI may be used improperly, i.e., when a lawyer submits AI-generated filings that are found to be incorrect. Judicial officers have expressed the need to parse cases and rules to ensure that filed pleadings are accurate for them to rely on and to ensure their judgments and orders are issued based on truthful pleadings and arguments.”

The committee continues, “To ensure this, some courts have issued rulings or orders regarding the use of AI, such as requiring attorney review, placing the responsibility on lawyers to notify the court when using AI, and provide confirmation of the accuracy of the work done by the AI tool. Other judges have gone further and required that attorneys certify that confidential information was not disseminated to an AI tool and that lawyers outline each section that uses generative AI.”

Keeping up with technology requires “ethical assessment.”

In the opinion, the committee explains how important it is to keep up with technology as it changes by saying, “AI is becoming more advanced every day and is rapidly integrating within the judicial system, which requires continual thought and ethical assessment of the use, risks, and benefits of each tool. The most important thing courts can do today is to ask the right questions and place their analysis and application of how they reached their conclusion on the record.”

In closing, the committee writes, “Judicial officers have an ethical obligation to understand technology, including artificial intelligence, and take reasonable steps to ensure that AI tools on which their judgment will be based are used properly and that the AI tools are utilized within the confines of the law and court rules. Further, as AI rapidly advances, judicial officers have an ethical duty to maintain technological competence and understand AI’s ethical implications to ensure efficiency and quality of justice.”

The Michigan Supreme Court amended a rule.

Before the State Bar of Michigan’s opinion was published, the Michigan Supreme Court had issued an order amending Michigan Rule of Professional Conduct Rule on September 18, 2019. In the rule, it adopts the duty of technology competence for lawyers. Additionally, on February 21, 2020, the State Bar of Michigan issued Ethics Opinion RI-381 citing that Lawyers have ethical obligations to understand technology, including cybersecurity.

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AI technology isn’t just on the minds of Michigan court workers, judges and attorneys though. Supreme Court Chief Justice John Robert has also weighed in on the issue at the end of last year in his year-end report of the federal judiciary. According to the Associated Press, the report discussed the pros and cons of computer-generated content in the legal profession. Roberts said in his report that although AI can make it easier for people with limited financial means to access the courts, that AI requires “caution and humility” and risks invading privacy interests and dehumanizing the law.

What about robots or AI taking over a role of a judge in court, rendering human judges obsolete? Roberts said, “I predict that human judges will be around for a while. But with equal confidence I predict that judicial work – particularly at the trial level – will be significantly affected by AI.”