Artificial intelligence (AI) tools such as ChatGPT are changing industries, and the practice of criminal law is no exception. Many lawyers are experimenting with these technologies to innovate and streamline their practice.
What is Chat GPT?
Artificial intelligence comes in many different forms, but it’s important to look at some definitions from the outset:
Generative – The AI generates or creates text rather than just analyzing or classifying it.
Pre-trained – The AI model is trained on massive amounts of text data before being fine-tuned for specific tasks.
Transformer – Refers to the underlying neural network architecture that enables the model to handle long sequences of text and understand context effectively.
AI can offer efficiency and convenience in the hands of someone who knows how to harness it, but it can also raise serious ethical questions. For attorneys, understanding the limits and risks of ChatGPT is essential for compliance with professional standards.
I’m going to touch on two of the most pressing ethical considerations for criminal defense attorneys: (1) – competence and diligence, and (2) – the duty to protect client confidentiality.
Competent and Diligent Representation
The Texas Disciplinary Rules of Professional Conduct require lawyers to provide competent and diligent representation to every client. Competence in today’s world includes a working knowledge of technology. This means that lawyers who choose to use tools like ChatGPT must not only understand the benefits of such technology, but also the technology’s limitations.
One of the biggest concerns when using ChatGPT is accuracy. ChatGPT has been known to generate false information, including fabricated case citations. In fact, several recent news stories have highlighted lawyers who relied on AI-generated briefs that contained nonexistent authorities, leading to embarrassment, sanctions, and disciplinary action.
For that reason, any lawyer using ChatGPT must carefully verify all outputs. AI may provide a helpful first draft, but it is never a substitute for independent legal research and judgment. Failing to check sources could fall short of the duty of diligence and expose a lawyer to ethical complaints. In short, ChatGPT can be a valuable tool for brainstorming, outlining, or simplifying concepts, but it cannot replace and should never replace the attorney’s core responsibility of exercising independent legal skill, analysis, and judgment on behalf of clients.
Client Confidentiality
Perhaps the most critical issue in the ethical practice of criminal law in Texas is confidentiality. The attorney-client privilege and client confidentiality are very important cornerstones of the legal profession. Lawyers are strictly prohibited from disclosing client communications without authorization.
Here’s where ChatGPT poses a unique risk for criminal defense lawyers – most platforms store or process the prompts and inputs users provide. If a lawyer were to paste sensitive client information into the system, that information could be retained by third-party servers outside the lawyer’s control. Even if not intentionally disclosed, the mere risk of exposure could represent a breach of the lawyer’s ethical duty. Criminal defense attorneys must exercise extreme caution.
Best practices include:
-Never input names, case numbers, or sensitive facts into ChatGPT or similar AI tools.
-Use the platform only for generalized, non-confidential tasks such as summarizing publicly available law.
-Stay informed about the terms of service and data policies of any AI platform before using it in practice.
By respecting these boundaries, lawyers can avoid breaches of confidentiality while still making limited and smart use of AI.
ChatGPT and similar AI platforms are undoubtedly powerful tools. Used responsibly, ChatGPT can enhance efficiency and help lawyers better serve their clients. Used carelessly, AI can create serious risks for both the lawyer and the client. Criminal defense attorneys in Texas have to maintain awareness of its limitations and boundaries.