Here is my recent Daily Record column. My past Daily Record articles can be accessed here.
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Judicial Ethics: Navigating the AI Era
Over the past two years, generative artificial (AI) ethics guidance has been plentiful, with many State Bars swiftly responding to the increasing need for AI adoption advice. Within months of ChatGPT’s initial release in November 2022, the risks of using generative AI in legal practice were alarmingly clear, as captured in numerous sensational headlines. The benefits were also evident, with the speed of adoption outpacing the necessary learning curve needed to utilize these tools competently. As more AI ethics opinions were issued, a clear path to ethical adoption emerged for lawyers.
But what about judges and court staff? Generative AI offers obvious benefits that could significantly increase efficiencies and remove tedium from their daily workflows by streamlining legal research and the drafting of orders and opinions. Of course, ethical implementation of AI by the courts is essential, and while the risks presented are similar to those encountered by lawyers, there are also considerations unique to the judiciary.
The good news is that some guidance is available. For starters, in October 2023, two different judicial ethics opinions were released. The first was JIC Advisory Opinion 2023-22. It was issued on October 13, 2023 by the West Virginia Judicial Investigation Commission.
The Commission determined that judges may use AI for research purposes but not when deciding the outcome of a case. Additionally, the Committee advised that extreme caution should be taken when using AI to assist with drafting orders or opinions. Finally, the Commission emphasized the importance of maintaining technology competence when using AI, clarifying that the duty was ongoing.
Later that month, on October 27, 2023, judicial ethics opinion JI-155 was issued in Michigan. The focus of this opinion was technology competence. Like the West Virginia opinion, judges were advised to maintain technology competence regarding technology, including AI: “(J)udicial officers have an ethical duty to maintain technological competence and understand AI’s ethical implications to ensure efficiency and quality of justice (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.”
More recently, Delaware and Georgia issued orders addressing the judiciary’s use of AI. On October 21, 2024, the Delaware Supreme Court adopted an interim AI policy for judges and court personnel (online: https://courts.delaware.gov/forms/download.aspx?id=266848). It requires users to maintain technology competence and outlines the appropriate usage of authorized AI tools, including the requirement that “(u)sers may not delegate their decision-making function to Approved GenAI.”
The State of Georgia’s Order related to the formation of its Ad Hoc Committee on Artificial Intelligence (online: https://jcaoc.georgiacourts.gov/wp-content/uploads/2024/10/AI_Committee_Orders.pdf). The Order appointed sixteen people to the committee whose mission is to assess “the risks and benefits of the use of generative AI on the courts and to make recommendations to ensure that the use of AI does not erode public trust and confidence in the judicial system.”
While guidance for the judiciary has been less plentiful, it remains valuable. These guidelines offer a clear roadmap for adopting AI responsibly, ensuring that judicial integrity is preserved throughout implementation. As AI technology advances rapidly, the judiciary must keep pace by leveraging AI’s potential to streamline processes and improve the quality of justice. By committing to continuous education and adhering to these standards, courts can gain the benefits of AI while upholding judicial integrity and maintaining public trust.
Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at MyCase, CASEpeer, Docketwise, and LawPay, practice management and payment processing tools for lawyers (AffiniPay companies). She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.