Have you talked to you summer law clerk about their AI use?

Issue 39 

It’s July. Have you talked to your summer law clerk about their AI use?  

The Case of the Law Clerk Using Unsanctioned AI 

Two lawyers were recently sanctioned by the Utah Court of Appeals after filing a petition for interlocutory appeal containing multiple cases that were miscited or nonexistent.[i] Petitioner’s counsel, Douglas M. Durbano and Richard A. Bednar, who were ordered to show cause as to why they should not be sanctioned or other disciplinary action should not issue, explained that the Petition had been prepared by an unlicensed law clerk who used ChatGPT in drafting the petition, that Mr. Durbano was not involved with drafting the petition, and Mr. Bednar did not independently check the accuracy of the petition before singing and filing the petition.[ii]  

Notably, Petitioner’s counsel revealed that the use of AI had not been addressed at their firm, and they were unaware that the law clerk was using ChatGPT for legal work.[iii]  

The Utah Court of Appeals wrote,  

We agree that the use of AI in the preparation of pleadings is a legal research tool that will continue to evolve with advances in technology. However, we emphasize that every attorney has an ongoing duty to review and ensure the accuracy of their court filings. In the present case, Petitioner’s counsel fell short of their gatekeeping responsibilities as members of the Utah State Bar when they submitted a petition that contained fake precedent generated by ChatGPT.[iv] 

The Utah Court of Appeals found that sanctions were warranted, and explained in part: 

Opposing counsel cannot be required to independently verify the veracity of each citation in another’s court filings. And Utah courts cannot be charged with independently checking the veracity of each citation in an attorney’s filings. Our system of justice must be able to rely on attorneys complying with their duty of candor to the court.[v] 

The Court ordered the following sanctions: 

1. Mr. Bednar was ordered to pay the attorney fees of respondents for the time spent responding to the petition and attending the show cause hearing; 
2. Petitioner’s counsel was collectively ordered to refund to petitioner all fees charged and paid for or related to the filing of the petition; and 
3. Mr. Bednar was ordered to pay a donation of $1,000 to the legal nonprofit called “and Justice for all”.[vi] 

What is Shadow AI, and What Can Lawyers Do About It? 

Shadow AI is the unauthorized use of AI tools in a workplace. The vast majority of lawyers collaborate with others while performing their work. Even if your law practice does not have a law clerk, you may have colleagues, staff, co-counsel, or experts who are using AI without your knowledge, and without authorization from your organization. 

One of the most impactful things lawyers can do to reduce AI risk is to confront shadow AI by regulating the use of AI in their organizations. Additionally, lawyers should be communicating with their collaborators about AI to reduce the risk of being caught unaware by someone else’s improper AI use.   

I’ve developed a free resource to help lawyers begin reducing their AI risk. A Lawyer’s First Three Steps to Reduce AI Risk will walk you through three actionable steps you can take for a quick and impactful reduction of your AI risk. It includes a checklist you can use to keep track of your progress as you work through the steps, and some additional things to consider once you are ready to move forward with managing your AI risk more broadly. You can sign up today here. 

Starting with the next issue, the newsletter publication schedule will be switching from every Friday to every other Friday. Next issue, I’ll be taking a deeper look at the proliferation of court filings with hallucinated cases, and how judges are responding. 

Thanks for being here. 

Jennifer Ballard 

Good Journey Consulting   

P.S. If you know a lawyer who might be interested in reducing their AI risk, please consider forwarding this issue of the newsletter to them. Thank you! If you are interested in receiving weekly AI news and analysis for lawyers, you can sign up for my weekly newsletter here.    

[i] Opinion at 1-2, Garner v. Kadince, Inc. et al., No. 20250188-CA (Utah Ct. App. Opinion filed May 22, 2025). 

[ii] Id. at 1-3. 

[iii] Id. at 3. 

[iv] Id. at 4. 

[v] Id. at 6.  

[vi] Id. at 7.