PROFESSIONALISM CORNER
PROFESSIONALISM CORNER
AI in the Courtroom : A Gathering Storm ? ( Continued )
PATRICK QUINLAN
A Florida lawyer ’ s duty of competence ( Rule 4-1.1 ), coupled with our duty of diligence ( Rule 4-1.3 ), suggest that we must perform some type of vetting on digital audiovisual evidence . Whether that means asking more questions of witnesses , trying to establish a chain of custody , purchasing deepfake detection tools and software , and / or keeping a Digital Forensics Expert on speed dial ( or retainer ) is not entirely clear at this point .
What is clear is that we cannot present manufactured or doctored evidence in court . The duty of candor ( Rule 4-3.3 ( a )( 4 )) prohibits a lawyer from offering evidence that he or she knows to be false . The rule against general misconduct ( Rule 4-8.4 ( c )) provides that a lawyer shall not engage in conduct involving dishonesty , fraud , deceit , or misrepresentation . Both of these rules are cited in Florida Bar Professionalism Expectation 2.10 , which states in part : “ A lawyer must not knowingly misstate , misrepresent , or distort any fact or legal authority to the court or to opposing counsel and must not mislead by inaction or silence .” A comment to Rule 4-3.3 explains the rationale for these rules by identifying what is ultimately at stake : “ This rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process .” ( Emphasis added ).
On the flipside , based on the same considerations of ethics and professionalism , lawyers should not claim that audiovisual evidence is fake without a good faith basis for doing so . A bogus “ deepfake defense ” seeks to exploit judges ’ and jurors ’ increasing skepticism about what is real . Just like deepfakes themselves , “ the deepfake defense is a new danger to our legal system ' s adversarial process and truth-seeking function .”
As Professor Rebecca Delfino notes , the ethical and professional standards provide little direct guidance because they were developed before the advent of deepfake technology . She has therefore proposed a new subsection in ABA Model Rule 3.3 ( the foundation for our Rule 4-3.3 ) to directly address these new concerns :
Proposed Rule 3.3 ( b ): Deepfake Evidence in Court
1 . A lawyer shall not knowingly or recklessly :
( a ) Offer evidence that the lawyer knows or should have known after reasonable due diligence to be a deepfake ; or
( b ) Impugn the authenticity of evidence without reason to believe that the evidence is a deepfake or argue or imply that evidence is false unless the lawyer has a reasonable belief that the evidence is false .
2 . If a lawyer , the lawyer ' s client , or a witness called by the lawyer , has offered deepfake evidence and the lawyer comes to know of its falsity , the lawyer shall take reasonable remedial measures , including , if necessary , disclosure to the tribunal . A lawyer may refuse to offer evidence , other than the testimony of a defendant in a criminal matter , that the lawyer reasonably believes is a deepfake .
A similar addition to Florida ’ s Rule 4-3.3 is certainly worth considering .
Conclusion
The tendency of generative AI programs to produce caselaw “ hallucinations ” -- citations to cases that do not exist -- has
PBCBA BAR BULLETIN 17 received an extraordinary amount of attention , including by the Chief Justice of the United States Supreme Court . See Roberts , Jr . J ., 2023 Year-End Report on the Federal Judiciary ( December 31 , 2023 ). At least 23 courts have adopted standing orders regulating , in some fashion , the use of generative AI in court filings . But these episodes were the product of sloppy lawyering , and they can be avoided with a modicum of diligence . The “ deeper ” danger presented by deepfakes is far different , and their threat to our system of justice far greater . They are the product of a much more sinister state of mind , and , with each passing day , they get easier to produce and harder to detect . The task for ethical , professional lawyers is to remain diligent , properly vet audiovisual evidence , identify anything that has been digitally altered , and keep it out of the courtroom .
** No generative AI was used in writing or editing this article .**
This article followed multiple brainstorming sessions that included input from Kalinthia Dillard , Mark Osherow , and Kara Rockenbach Link . Thank you all for your help .
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