Ralph Losey. Published June 13, 2024.
This week the Fifth Circuit Court of Appeals, after hearing many comments from attorneys around the country, declined to become the first appellate court in the country to adopt an AI usage rule. It decided not to adopt the rule governing the use of Generative Artificial Intelligence that it had previously proposed. In doing so, the Fifth Circuit used what we think is the clever statement “”I used AI” will not be an excuse for an otherwise sanctionable offense.”
We agree. In fact, we used nearly the same words over a month ago to name a CLE that the Florida Bar then approved entitled. “My AI Did It!” Is No Excuse for Unethical or Unprofessional Conduct: Consideration of recent case law and ethics opinions. It will be given online with EDRM’s help by Judge Ralph Artigliere and Ralph Losey on June 28, 2024. Here is the graphic for the CLE announcement, also seen on JD Supra.
The Florida Bar has approved this webinar and reruns of it for eighteen months for the following CLE credits: General- 2 credits, Professionalism- 1 credit, Ethics- 1 credit, Technology- 1.5 credits. You can register for it now.
Here is the full text of Eleventh Circuit Decision on its Proposed Rule:
United States Court of Appeals
FIFTH JUDICIAL CIRCUIT
Court Decision on Proposed Rule
“The court, having considered the proposed rule, the accompanying comments, and the use of artificial intelligence in the legal practice, has decided not to adopt a special rule regarding the use of artificial intelligence in drafting briefs at this time. Parties and counsel are reminded of their duties regarding their filings before the court under Federal Rule of Appellate Procedure 6(b)(1)(B). Parties and counsel are responsible for ensuring that their filings with the court, including briefs, shall be carefully checked for truthfulness and accuracy as the rules already require. “I used AI” will not be an excuse for an otherwise sanctionable offense.”
Here is the Proposed Rule that the court rejected (proposed revisions are in text as originally redlined by the court):
32.3. Certificate of Compliance. See Form 6 in the Appendix of Forms to the Fed. R. App. P. Additionally, counsel and unrepresented filers must further certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human. A material misrepresentation in the certificate of compliance may result in striking the document and sanctions against the person signing the document.
FORM 6.
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT
- This document complies with the AI usage reporting requirement of 5th Cir. R. 32.3 because:
no generative artificial intelligence program was used in the drafting of this document, or
a generative artificial intelligence program was used in the drafting of this document and all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human.
For background see the excellent article by Judge Paul Grimm, Professor Maura Grossman, and Professor Daniel G. Brown that was written in opposition to the Court’s adoption of the proposed rule. Is Disclosure and Certification of the Use of Generative AI Really Necessary?. Also see, REAL OR FAKE? New Law Review Article Provides a Good Framework for Judges to Make the Call concerning another terrific article they wrote, The GPTJUDGE: Justice in a Generative AI World.
Ralph Losey Copyright 2024 — All Rights Reserved
Discover more from e-Discovery Team
Subscribe to get the latest posts sent to your email.
[…] Humans are always in charge. The rules of procedure and ethics clearly require that. See e.g. Fifth Circuit Court of Appeals Decides Not To Adopt Its Proposed Rule to Regulate the Use of Generat… […]