Florida Probate Litigation Lawyer Blog
Artificial intelligence (“AI”) is a great tool to assist people with a variety of tasks. For example, AI can create grocery lists and corresponding recipes, offer advice for difficult situations, or even draft an email to a colleague. But can AI do the work of an attorney?
In the Matter of Phylliscita Ismay Samuel, the court had to address a lawyer’s careless use of AI in a contested probate proceeding. In this case, a decedent executed a purported prior will in 2012. In 2014, the decedent was the subject of a guardianship proceeding where she was adjudicated incapacitated and the court appointed Samuel as her guardian. Thereafter, the decedent executed the purported 2014 will which was challenged and became the subject of this case. The party challenging the will, Osborne, sought summary judgement and dismissal of Samuel’s petition and denial of the propounded 2014 instrument, alleging that the decedent lacked capacity at the time of execution, and that the instrument was procured by fraud, duress and undue influence by Samuel and others.
While attempting to challenge the will, Osborne faced a huge problem with his case. Osborne’s attorney submitted documents which contained fictional and/or erroneous citations because he relied on generative AI to draft these documents. In other words, the AI which Osborne’s attorney used had “hallucinated” or made up the cases relied on in the legal arguments made to the court.
The court explained that “it is not necessarily the use of AI in and of itself that causes such offense and concern, but rather the attorney’s failure to review the sources produced by AI without proper examination and scrutiny.” This suggests that lawyers may use AI but they must exercise extreme caution when doing so, meaning they must completely check the AI’s output for misrepresentations, errors or fake case citations.
In this case, “Osborne’s attorney took no steps to ensure that the information and citations that he was presenting to the court were legitimate and factual.” The court found that counsel’s conduct was frivolous because his document asserts material factual statements regarding the case law and court holdings that are false. The court explained that the penalty for committing this fraud upon the court should include striking the pleading from the record and possibly economic sanctions.
The court explained that many harms flow from the submission of fake citations such as wasting the time and money of the opposing party, wasting the time of the court, depriving the client of adequate arguments, potentially harming the reputation of judges and courts, and promoting cynicism about the legal profession and judicial system.
This case presents a very important lesson for lawyers and anyone who may consult with one. AI might be a useful tool in some situations, but using AI comes with many risks especially in complex legal cases. When a client is represented by an attorney, they deserve competent representation by a legal professional who does not use generative AI as a shortcut.
If you wish to challenge or defend a loved one’s estate plan, you should consult with an experienced probate attorney. The lawyers at Chepenik Trushin LLP are experienced, ready, and willing to help you with all of your probate litigation needs.
