AI ETHICS authentication becomes more complex. Defenders should also prepare to challenge authentication of prosecution evidence involving AI. When prosecutors rely on AI- processed materials, defenders can probe whether proper authentication establishes that the AI output accurately represents the underlying evidence. Defenders frequently help clients prepare allocution and other materials for sentencing or other proceedings. AI can assist with this process — generating drafts, suggesting content, or polishing language — but such assistance raises ethical concerns. Character letters present a common example. Courts and opposing counsel may scrutinize such materials for signs of AI generation, and defenders should advise clients about these concerns. Authenticity matters for character materials. Courts rely on character letters as genuine expressions of the writer’s views. Candor obligations apply here as well. If a court or opposing party asks about the preparation of character materials, defenders must answer truthfully. Representing AI-generated content as the client’s or a third party’s original work may violate the duty of candor. Defenders should disclose AI assistance in character materials when authenticity might be questioned and should ensure that any person signing AI-assisted materials has meaningfully reviewed and adopted the content as their own. When doubt exists about appropriate disclosure, defenders should err toward transparency. Courts have responded to AI misuse with sanctions and prospective restrictions. Courts in multiple jurisdictions have adopted standing orders requiring AI disclosure or certification. Defenders should know the AI-related rules and orders in their jurisdictions. Requirements vary significantly. As noted above, some courts require disclosure only of generative AI used in drafting, while others sweep more broadly to include any AI assistance. Some courts require affirmative certification that AI content was verified, while others simply require disclosure. Noncompliance can result in sanctions, rejected filings, or other adverse consequences.
4. Rule 5.3 – Supervision; Responsibilities Regarding Nonlawyer Assistance
Model Rule 5.3 addresses lawyers’ responsibilities when using nonlawyer assistants. Partners and supervising lawyers must ensure that nonlawyer conduct remains “compatible with the professional obligations of the lawyer.” The rule requires law firms to have “measures giving reasonable assurance” that nonlawyer assistants’ conduct comports with the lawyer’s ethical obligations. AI vendors constitute a form of nonlawyer assistance that lawyers must supervise to ensure ethical compliance. This supervisory obligation has several implications. Defenders must evaluate AI vendors’ practices before using their services, just as they would evaluate a contract paralegal or document review company. Defenders must monitor AI outputs for accuracy and ethical compliance. And defenders must
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Parity in Practice: The Defender’s Duty to Ethically Use AI
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