Legal ethics in the age of AI: Insights from the Brooklyn Bar Association and Kaylin Whittingham

In an now annual tradition at the Brooklyn Bar Association, attorney Kaylin Whittingham provided her “2023 Year in Review” continuing education seminar on Wednesday, Feb. 7, where she discussed noteworthy ethics decisions and opinions that were published in New York over the past year.

This year’s discussion provided an in-depth exploration of pressing ethical considerations in the era of advancing technology and artificial intelligence (AI).

Whittingham, a former New York State Commissioner on Ethics and Lobbying in Government and a referee for the New York State Commission on Judicial Conduct, is a known expert of the ethical dilemmas facing today’s legal professionals. 

Her practice at Whittingham Law focuses on Legal Ethics and Professional Responsibility, drawing from her background as counsel at the Attorney Grievance Committee, First Judicial Department, where she investigated and prosecuted a broad spectrum of professional misconduct cases.

The CLE session tackled various topics, not just AI, including the management of escrow accounts, navigating conflicts of interest, understanding fee structures, and addressing issues such as “little white lies,” false filings, CLE violations, and the unauthorized practice of law. 

Special attention was given to the implications of AI in court reporting and captioning, highlighted by recent cases like Mata v Avianca, where an attorney inappropriately used ChatGPT to create non-existent judicial opinions.

Another trial, U.S. v Michel, revealed the risks of relying on AI for crucial tasks like crafting closing arguments. In this case, an attorney relied on AI and their presentation was filled with frivolous arguments.

In response to these increasingly common problems, the California Committee on Professional Responsibility and Conduct issued AI Guidelines, cautioning against overreliance on AI tools in legal practice. The guidelines state that lawyers must apply their trained judgment to check the content of their legal submissions for accuracy and bias.

A similar opinion out of Florida advises against delegating tasks that constitute the practice of law to AI, stating that the lawyer is responsible for all legal advice given even if generated by AI.

A CLE on Cybersecurity is Available for Download

On Tuesday, Jan. 23, the BBA hosted a CLE on cybersecurity titled, “Cybersecurity Awareness — Think Before You Click” featuring cybersecurity expert David Bensinger. 

The session aimed to equip legal professionals with essential knowledge on cybersecurity, focusing on practical advice for anyone using email, computers or smartphones and handling privileged or confidential information.

Bensinger, the founder and CEO of Bensinger Technology, led the course, bringing over two decades of experience in guiding companies through the strategic implementation of technology solutions. 

Bensinger, who established his company in 2009, has been at the forefront of raising service standards in cybersecurity and IT management. His background includes a tenure at Deloitte Consulting, where he advised some of the world’s leading corporations on IT infrastructure and management. 

Bensinger holds a Ph.D. in brain and cognitive sciences from the University of Rochester’s Center for Visual Science, with a focus on addressing technology challenges faced by businesses.

The CLE session underscored the growing importance of cybersecurity awareness in the legal profession, where the handling of sensitive information is routine. Attendees were provided with foundational cybersecurity knowledge crucial for safeguarding against the increasing threats.

For those who could not attend the live session, the BBA has made the CLE available for download on its website, ensuring that all members have the opportunity to enhance their cybersecurity practices and protect their clients’ confidential information effectively.

Coming Up: CLEs on FOIL and the Kings County Clerk’s Office

The BBA is gearing up to offer two pivotal Continuing Legal Education (CLE) sessions designed to enrich the legal community’s proficiency in public information access and court procedural intricacies. 

On February 13 at 1 p.m., the BBA will present the “Freedom of Information Law (FOIL) for Lawyers” CLE, featuring esteemed speaker Joseph Aron, Esq. 

Aron, the founder of Aron Law, PLLC, is renowned for his expertise in FOIL litigation across New York State’s Trial and Appellate courts. His extensive experience in advocating for the public’s right to government documents under FOIL should help BBA Members to gain valuable insights from his successful litigation strategies.

The BBA will hold another session titled “Navigating the Kings County Clerk’s Office” on Tuesday, Feb. 27, at noon. 

This CLE aims to demystify the operational facets of the Kings County Clerk’s Office, which plays a crucial role in the management of Supreme Court filings, notices of pendency, judgments, mechanic’s liens and jury matters. The program is set to cover a wide range of topics, including document filing procedures, accessing court records, understanding the functionalities of NYSCEF, eCourts and eTrack; and navigating through liens, judgments and foreclosure actions. 

This two-hour session, offering two CLE credits, is tailored for legal professionals at all levels of experience. The program will feature Hon. Nancy Sunshine, Kings County clerk, commissioner of jurors and clerk of the Supreme Court; and Craig Schatzman, deputy county clerk. 

Participants will also learn about common filing errors, the recent amendment to CPLR 2106 concerning notary requirements, surplus money proceedings, and updated safeguards against deed theft.