The Docket - July 2023

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8 Legal “Answers”

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Juneteenth: Celebrating Freedom and the Pursuit of Justice

The newest federal holiday for the United States is Juneteenth, also known as Freedom Day or Emancipation Day. The day commemorates and celebrates the emancipation of enslaved African Americans. On June 19, 1865, union army general Gordon Granger arrived in Galveston Texas to announce the end of slavery, two-and-a-half

years after the Emancipation Proclamation had been issued. The day stands as a reminder of the power of the law in promoting justice and equality. It also highlights the ongoing struggle for civil rights. This column explores the historical context of Juneteenth, its relationship with the law, and its contemporary significance.

The Emancipation Proclamation, issued by President Abraham Lincoln on January 1, 1863, declared that all slaves in confederate territory were to be set free. However, due to the limited reach of the union army and to confederate resistance, it took time for the proclamation to be fully enforced. On June 19, 1865, General Granger read General Order no. 3, officially emancipating the slaves in Texas. This moment marked the culmination of legal action in the enforcement of the Emancipation Proclamation. Juneteenth became a pivotal event in the fight for equality and justice symbolizing the triumph of the law in upholding fundamental human rights. It exemplifies

how the law can be a powerful tool for social change and the realization of freedom.

Juneteenth also serves as a reminder of the struggles and legal battles that followed emancipation. The Reconstruction Era witnessed the passage of significant legislation, including the 13th amendment, which abolished slavery, and the 14th amendment, which granted equal protection under the law and due process to all citizens. However, these advances were met with resistance, and systematic racism persisted through segregation laws, discriminatory practices, and racial violence. But the American desire for equality persisted!

On June 17, 2021, Juneteenth was officially recognized as a federal holiday, underscoring its significance in American history. This recognition represents a step forward in acknowledging the enduring impact

BY KATHARINE HATCH PRESIDENT

of slavery and the ongoing fight against racial inequality. Juneteenth encourages reflection on the progress made and the work that remains to dismantle systematic barriers and ensure equal rights for all.

Juneteenth stands as a testament to the power of the law in shaping the course of history. It reminds us of the long and arduous journey to enduring freedom and equality, as well as the ongoing struggle for justice. This commemoration serves as a call-to-action, urging us to confront the challenges that persist and to continue working towards a more inclusive and just society. Juneteenth and the law are intertwined, reminding us that the pursuit of justice is an ongoing process, requiring vigilance, empathy, and a commitment to upholding the principles of equality and freedom for all.

President’s Page

David J Gordon, CFP®, CIMA®, CDFA™ Senior Portfolio Management Director Executive Director, Financial Advisor NMLS# 1268300

David J Gordon, CFP®, CIMA®, CDFA™ Named one of Forbes’ Best-In-State Wealth Advisors

(Our Website)

Source: Forbes.com (April 2023) Forbes America’s Top Wealth Advisors and Best -In- State Wealth Advisors rankings awarded in 2023. This ranking was determined based on an evaluation process conducted by SHOOK Research LLC (the research company) in partnership with Forbes (the publisher) during the period from 6/30 /21 - 6/30/22. Neither Morgan Stanley Smith Barney LLC nor its Financial Advisors or Private Wealth Advisors paid a fee to SHOOK Re search LLC for placement on its rankings. This ranking is based on in-person and telephone due diligence meetings to evaluate each advisor qualitatively, a major component of a ranking algorithm that includes client retention, industry experience, review o f compliance records, firm nominations, and quantitative criteria, including assets under management and revenue generated fo r their firms. Investment performance is not a criterion. Rankings are based on the opinions of SHOOK Research LLC and this ranking may not be representative of any one client’s experience; investors must carefully choose the right Financial Advisor or team for their own situation and perform their own due diligence. This r anking is not indicative of the Financial Advisor’s future performance. Morgan Stanley Smith Barney LLC is not affiliated with SHOOK Research LLC or Forbes. For more information, see www. SHOOKresearch.com.

“Being named to Forbes’ 2023 Best -In-State Wealth Advisors list is a testament to the experience, focus, and dedication we bring to our clients’ financial future.”

TO THE ASSOCIATE JUDGES OF THE 19TH CIRCUIT COURT OF ILLINOIS ON THEIR REAPPOINTMENT TO THE BENCH IN LAKE COUNTY

The Two Inspiring Events This Past Month

Happy July! I hope that each of you is finding time to enjoy the summer season. Before I move completely on to July happenings, I’d like to spend a few moments on some monumental events from June. Two events leap immediately to mind: The recent installation ceremony for members of the Executive Board and the Board of Directors for the Bar Asso-

ciation and the Bar Foundation, respectively, and my daughter’s graduation ceremony from the School of Continuing Studies of Georgetown University.

As most of you are aware, we are extremely fortunate to have such an active and productive Bar Foundation in our legal community. The Bar Foundation is fundamentally involved in community activities and support for many events in and around our courthouse. The Foundation is instrumental in our Veterans History Project. Each year on Veterans Day, attorneys, court reporters, and courthouse volunteers work together to record the oral history of veterans of war, from World War II on to the present. In addition, the Foundation is a huge supporter of our Restorative Justice Division.

Comprised of our juvenile courts and prob-

lem-solving courts, the Restorative Justice Division relies on the help and funding received from the Foundation for much-needed programming. The Foundation is also the primary resource for our annual Mock Trial Competition, which draws participants from all over Illinois. Without support from the Foundation, these events would cease to exist.

The Bar Association more broadly plays a vital role in every aspect of legal life in Lake County. From programming CLE opportunities to arranging social events, our Bar Association is invaluable to its members. The committee work touching every aspect of law practice is informative and essential to maintaining and enhancing our ability to practice and serve clients and the court system.

At the LCBA/LCBF installation ceremony, I was honored to be a part of the

BY CHIEF JUDGE MARK L. LEVITT

evening in recognizing all those who serve, and in welcoming the newest members of the Executive Boards and the Boards of Directors. Congratulations to all. There are few moments in a parent’s life when you get to experience intense pride along with unmitigated boredom. Of course, I’m talking about the highly anticipated yet dreaded commencement ceremony. Especially from large institutions of higher learning, the few moments spent celebrating your child as he or she receives a diploma is often dwarfed by the hours spent watching other people’s children and loved ones receive theirs. However, every so often you are treated to an amazing commencement address that hits home.

My daughter received her master’s degree from Georgetown University, and it was an incredible cere-

ChiefPageJudge’s

mony! The keynote speaker was Jason Kander. I had no idea who Jason was prior to hearing him speak. I quickly learned a lot about Jason and his background.

After the 9/11 attack Jason enlisted in the Army and, upon graduation from law school, was commissioned as a second lieutenant and deployed to Afghanistan. During his deployment he served primarily as an investigator of corruption, espionage, and drug trafficking.

Upon his return to the states, Jason continued to serve as an instructor in officer candidate school, while also embarking on his career as an attorney. This led to a career in politics. Beginning with election to the Missouri House of Representatives, he thereafter became the first millennial in the country elected to statewide

office, becoming the Missouri Secretary of State. He was on a meteoric political ascent that culminated with exploring a presidential bid after the 2018 midterms, but which he abandoned in favor of a run for Kansas City mayor. All of this time he was secretly battling PTSD, which eventually led him to a VA hospital and being put on suicide watch that same year.

Against that background he sought to inspire these Georgetown graduates. His idea was a simple one, and I believe it applies to all of us. Rather than invoke the traditional graduation tropes of heading out to change the world, he spoke of the need to work on yourself. He told the graduates that “I am not here to inspire you to think of others. I’m actually here to inspire you to think of

yourself.” He went on to say, “my message to you today is one that I learned the hard way: that there is nothing selfish about self-care, because if you don’t take care of yourself, you won’t change the world. But if you do, you just might.”

Aside from being a truly talented speaker with an engaging story to tell, the message really resonated with me and my family,

and I hope you will take a few minutes to check out his speech, which starts at the 57:45-minute mark in this recording of the graduation ceremony: https:// www.facebook.com/ watch/?v=916360509445554.

Jason currently serves as President of National Expansion at the Veterans Community Project, a non-profit serving homeless and at-risk veterans.

Resolute Systems Welcomes

JUDGE DAVID BRODSKY, ret.

We congratulate Judge Brodsky on his outstanding judicial career where he developed a reputation as an extremely effective pre-trial mediator. To schedule mediation with Judge Brodsky, please contact Mike Weinzierl at 312.346.3770, x125 or go to our Web Pages at davidbrodskymediation.com

Meet the Board

JUDY MALDONADO

Judy Maldonado has always had a passion for the law and for helping people. Since the age of six, she knew she wanted to become a lawyer. Judy started practicing law in 2003 at a small, general practice firm in Chicago, and it’s where she fell in love with real estate law. She loved that it was an area of law that usually had a happy ending at each transaction and decided that was where she wanted to focus

her practice. In January 2012, Judy decided to hang her own shingle outside a 500 sq. ft. office in Gurnee. Offering services in real estate law and estate planning, she hoped to have a few closings a month. This past year, her office handled over 1,300 closings and just finished their expansion to a now over 3,000 sq. ft. office space.

Judy loves connecting with people and giving back. When she isn’t

working, she serves on the board of directors for several organizations, including the Lake County Bar Association, Waukegan to College, G7 Networking, and her own homeowner’s association. Judy is an active volunteer with Safe Families for Children, which offers respite care to families in crisis. Whether spending time with her family, handling a closing, or providing a home for a child in need, Judy infuses every-

thing she does with grace, skill, and most importantly, love.

Helping people obtain the benefits that are rightfully theirs.

Both

Whether you have a potential liability

need advice on managing your practice, or an ethical question…we are here to help

Legal “Answers” From Artificial Intelligence

BY

By now you have certainly heard about—and perhaps even tried—the new artificial intelligence (“AI”) products. The company Open AI’s product, called ChatGPT, can be used through Microsoft’s Bing website; separately, Google has its Bard product. Recently I heard of a company called Harvey AI, which is being pitched at “Elite Law Firms.”

Two narratives predominate about AI. The first narrative is essentially that we are headed to a future depicted in The Terminator. The second narrative is that humanity’s embrace of AI will be as transformational as our long-ago harnessing of fire.1 When you try ChatGPT or Bard, these narratives can both come quickly into focus. For me, the “wow!” factor initially predominated: these services spit out grammatically perfect and often quite detailed answers in under five seconds.

AI bots and lawyers already share one thing in common: we are relied upon to answer a lot of questions. There have been many articles written about AI’s potential utility for lawyers. Instead of repeating those points, this article takes one concrete example and runs AI through its paces. The answers were revealing, resonating in both the Terminator

1 Ben Buchanan and Andrew Imbrie, The New Fire – War, Peace, and Democracy in the Age of AI, available at https://mitpress. mit.edu/9780262046541/the-new-fire/.

and the harnessing-of-fire narratives.

For context, I start below by describing the question I sought to answer; next, I’ll show two answers that Bard produced, with annotations. The annotations are crucial, because the text Bard produced is wholly believable. Without more, you would think that the question has a ready and straightforward answer. I’ll end with a the result that ChatGPT produced (via Microsoft’s Bing).2 From those three answers, we can draw some preliminary conclusions about our AI-infused future.

OVERVIEW.

Stephen J. Rice is an Assistant State’s Attorney in the Civil Division of the Lake County State’s Attorney’s Office. He was the Lake County Bar Association President in 2019-2020.

In government practice, lawyers are commonly asked to construe the boundaries of “Sunshine Laws,” such as the Freedom of Information Act or the

2 Bing incorporated ChatGPT-4 at the time I used it. ChatGPT has been sequentially releasing ever more powerful versions of its service, with GPT-4 being the publicly available version at the time of this article.

An illustration of the good, the bad, and the ugly, all on the example of one basic legal query.

STEPHEN J. RICE

Illinois Open Meetings Act. These bodies of law have many rules that are straightforward, but they also contain a myriad of gray areas. Also, Sunshine Law are codes to which facts are constantly being applied: there are many governmental bodies in a complex western democracy, so Sunshine Laws get a regular workout.

I was recently asked a question that I had researched long ago, but to which I was asked to return: Whether a governmental body can set its quorum—i.e., the minimum number of people needed to transact business—at less than a majority of the body’s total members. The common law rule is that a quorum is a majority of a body’s members: e.g., the 19-member County Board achieves a quorum at 10 members. A majority of a quorum, or 6 members, is the minimum number of votes that can approve most matters.3

Particularly for large bodies, setting a quorum at less than a majority could be useful. Assume you have a large body—it could be a subcommittee of some sort— made up of 17 members. If that subcommittee has difficulty getting its nine-member majority together for meetings, then setting a lower quorum requirement could help.

The idea is not crazy, though in derogation of the common law rule. The parliamentary standby Robert’s Rules of Order foresees that a governing body might set a smaller-than-majority quorum.4 And at least some other states have open meetings laws that define the term “quorum,” and in doing so contemplate something other than the “majority” rule. See, e.g., Mass. Gen. Laws Ann. ch. 30A, § 18 (defining “quorum” as “a simple majority of the members of the public body, unless otherwise provided in a general or special law, executive order or other authorizing provision.”)

A lower quorum might be seen as diluting the representativeness of a body, and if a governmental entity is

3 Some statutes require majority-of-the-board votes, or even supermajority votes. See, e.g., 55 ILCS 5/5-1130, (supermajority for leases of computer equipment); 55 ILCS 5/6-32010 (majority-of-the-board for Emergency Disaster Fund expenditures);

55 ILCS 5/5-1005.5 (majority-of-the-board vote required for advisory referenda). But otherwise, a relatively small group of members (e.g., 6) can sometimes control the actions of a large board (e.g., just 6 of 19).

4 Robert’s Rules of Order, Ch. 11 (11th Ed. 2011).

mandated to have a certain number of members by statute or otherwise, then reducing the quorum required might be impermissible on this basis.5 Some statutes that create public bodies prescribe a quorum: for example, a “majority of the members of any county board shall constitute a quorum . . . .”6 But I have found no general Illinois statutes or cases that require quorums to be a majority; this includes the Open Meetings Act itself, which does not define the term “quorum.”

But what might AI say to this question? There are 50 states and many tens-ofthousands of governmental entities throughout them, so an AI bot would likely have a deep well of resources it could bring to bear on the question.

Without further ado, here were the results, with my annotations. I will put the annotations in footnotes, because it will help you see how well written and convincing the AI answers are. Please read the annotations though, because they reveal much about AI in its present iteration.

PROMPT #1 TO BARD: Can a public body set its quorum as less than a majority of its overall members?

Bard Answer:

Whether a public body can set its quorum as less than a majority of its overall members depends on the law of the jurisdiction in which the body is located. In some jurisdictions, the law requires that a quorum be a majority of the body’s members, while in other jurisdictions, the law allows the body to set its own quorum.

For example, in the United States, the federal government7 requires that a quorum of the House of

5 One might mute the “dilution” concern by defining a smaller quorum, but then also requiring the same number of votes to pass a matter as if a majority-quorum were present. (E.g., 17-member body, defined quorum as 7 members (instead of 9, which would be the majority), but require the affirmative vote of at least 5 members to pass any matter (not 4 members, which would be all that is required in a 7-member quorum)).

6 55 ILCS 5/2-1005.

7 Actually, not the “federal government,” but rather the U.S. Const. Art. I Sec. 5. See also Voting and Quorum Procedures in the House of Representatives (congress.gov). Similarly in Illinois, the Ill. Constitution states that s “majority of the members elected to each house constitutes a quorum.” Ill. Const. art. IV, § 6. Compare also that the Ill. Constitution defines quorums and voting requirements for the Appellate Court: “A majority of a division constitutes

Two narratives predominate about AI. The first narrative is essentially that we are headed to a future depicted in The Terminator. The second narrative is that humanity’s embrace of AI will be as transformational as our long-ago harnessing of fire.

Representatives be a majority of the body’s members (218 members), while the Senate requires a quorum of two-thirds of the body’s members (67 senators).8 In contrast, the law of the state of California allows public bodies to set their own quorums, as long as the quorum is not less than a majority of the body’s members.9

If a public body sets its quorum as less than a majority of its overall members, it is important to note that this may not be enough to prevent a minority of members from blocking action. For example, if a body has five members and sets its quorum at three members, a minority of two members could still block action by refusing to attend meetings.

In addition, it is important to note that the law of some jurisdictions may prohibit public bodies from setting their quorums as less than a majority of their overall members. For example, the law of the state of New York prohibits public bodies from setting their quorums as less than a majority of their overall members.10

On whole, I considered this answer to be broadly helpful, despite its inaccuracies (see my footnotes). The text helpfully pointed me to some other sources in which I could do additional research, which helped me ponder other searches or possible answers that were different from what I had previously imagined. In short, this answer was a useful secondary source, much like the secondary sources I regularly use in my legal research, albeit less authoritative.

The next search dialed things up quite a bit. What I really needed to know is the Illinois answer. So that was my next question to Bard.

PROMPT #2 TO BARD:

Can a public body in Illinois set its quorum as less than a majority of its overall members?

a quorum and the concurrence of a majority of the division is necessary for a decision.” Ill. Const. art. VI, § 5. By contrast, the Illinois Constitution does not speak to quorums in its section on “Local Government.”

8 This appears incorrect: the Constitution requires a majority in the Senate (Art. I Sec. 5), and the Congressional Research Service reports that only a majority is required: https://crsreports.congress. gov/product/pdf/RL/96-452 (Mar. 26, 2020). AI “Large Language Models” generate text by predicting what the next words in a sentence or paragraph will be. There are likely so many references to the Senate and the filibuster rule, requiring 67 votes to advance matters in the Senate, that Bard seems to have been misled into imputing that rule to be the answer here. But Bard provided no citations, so we can only guess at the provenance.

9 Some quick research could not confirm or deny this claimed rule, although the California Constitution states with regards to the legislature that “A majority of the membership constitutes a quorum, but a smaller number may recess from day to day and compel the attendance of absent members.” Cal. Const. art. IV, § 7.

10 This appears to be true: N.Y. General Construction Law § 41, which appears to be the New York version of Illinois’ “Statute on Statutes.”)

Bard Answer:

No, a public body in Illinois cannot set its quorum as less than a majority of its overall members.11 The Illinois Open Meetings Act (OMA) requires that a majority of a public body’s members be present in order for the body to conduct business. This is known as a quorum. The OMA defines a quorum as “a majority of the whole number of members of a public body.”12 For example, if a public body has five members, a quorum would be three members. If fewer than a quorum of members are present, the body cannot conduct business.

There are a few exceptions to the quorum requirement. For example, a public body can conduct business by telephone or other electronic means if all members of the body consent to the method of communication.13 Additionally, a public body can conduct business without a quorum if the body is declaring a disaster or taking other emergency action.14

The OMA is designed to ensure that the public has a right to participate in the decision-making process of its government. By requiring a quorum, the OMA ensures that a public body cannot make decisions without the participation of a majority of its members. This helps to prevent the abuse of power by public officials.15

In case you skipped the footnotes, Bard went off the rails with this answer. See the footnotes for details.

AI bots will generate other drafts of text they generate— you can click a button and it will produce a second, third, or fourth draft—but I will not go down that rabbit hole here. Suffice it to say: if you try these same prompts that I have used, you will see the bots generate similar but different text.

I do want to show one last answer though, this time from ChatGPT instead of Bard:

PROMPT #3 TO CHATGPT (VIA MICROSOFT’S BING):

In Illinois, can a public body set its quorum to be less than a majority of its members?

11 Enough with the lawyerly hedging: Bard is all-in on this answer.

12 Here Bard has gone off the proverbial rails: the quoted material does not appear in the Ill. Open Meetings Act! The quotation marks make this doubly misleading, of course. Possibly Bard has transposed New York General Construction Law Sec. 41, which I cited further above, which uses the phrase “a majority of the whole number of such persons or officers . . . shall constitute a quorum . . . .” N.Y. General Construction Law Sec. 41. But how AI generates the precise answers it generates is not always discernable, even to its human creators (programmers).

13 It’s easy to imagine how Bard reaches this conclusion with the Covid pandemic rules, but it’s nevertheless incorrect (even under Covid pandemic rules, this sentence provides an oversimplified, inaccurate summary of how a remote meeting could be conducted).

14 This is not consistent with the Illinois Open Meetings Act.

15 This policy summation sounds right and is consistent with the raison d’être of the Open Meetings Act, but without an explicit definition of quorum somewhere in the Open Meetings Act—not the one Bard fabricated—it is hard to so definitively reach Bard’s conclusion.

Chat GPT Answer

According to the Illinois Open Meetings Act (OMA), a meeting is defined as “any gathering, whether in person or by video or audio conference, telephone call, electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business or, for a 5-member public body, a quorum of the members of a public body held for the purpose of discussing public business.”FN1, FN2

A quorum is the minimum number of members of a public body that must be present to conduct business. The OMA does not specify how to determine a quorum, but it is generally understood to be a majority of the total number of members. For example, if the public body has nine members, a quorum consists of five FN3. If the public body has only five members, the quorum consists of three FN4

Therefore, based on the OMA definition, a public body cannot set its quorum to be less than a majority of its members. Doing so would violate the intent and purpose of the OMA, which is to ensure that the public has access to information about government and its decision-making process.FN5, FN6

Source: Conversation with Bing, 4/29/2023

1 Illinois Open Meetings Act Frequently Asked Questions for Public Bodies. https://dph.illinois.gov/content/dam/soi/en/web/idph/files/ publications/faq-oma-government.pdf.

2 Illinois Open Meetings Act Frequently Asked Questions By the Public. https://foiapac.ilag.gov/content/pdf/faqs_oma_public_11_2011.pdf.

3 THE ILLINOIS OPEN MEETINGS ACT - Illinois State Bar Association. https://www.isba.org/sites/default/files/Media%20Law%20 Handbook%20Chapter%2003%20-%20The%20Illinois%20 Open%20Meetings%20Act.pdf.

4 THE ILLINOIS OPEN MEETINGS ACT - Illinois State Bar Association. https://bing.com/search?q=Illinois+public+body+quorum.

5 Illinois Open Meetings Act Amended to Allow Meetings ... - Miller Canfield. https://www.millercanfield.com/resources-Illinois-Open-Meetings-Act-Update.html.

6 Illinois Leaks | Windsor’s illegal meeting without quorum to appoint .... https://edgarcountywatchdogs.com/2022/03/windsors-illegal-meeting-without-quorum-to-appoint-mayor-pay-employees/.

This answer—and particularly its second paragraph—is both generally accurate and one that, in a pinch, I would provide to a client. So is my role as a municipal attorney about to be automated away?

I don’t think so.

First, each of these answers required a lot of source-checking. They would have been time savers in helping me pen an answer—I could envision taking parts of what the bots generated wholesale—but I would trust none of it without 30-60 minutes of additional research. Maybe more.

Second, these answers suggest a definitiveness that the

law in America often belies. While the Illinois Open Meetings Act possesses a fair number of straightforward rules that are amenable to definitive answers, my quorum question is not one of them. And here the judgment of a lawyer, perhaps interacting with the needs of a client, might provide a trump card for the human.

As a human lawyer, I can answer a question using a humanistic risk-reward analysis that a computer may have difficulty replicating. Admittedly the computer can probably calculate risk like an actuary, which I cannot do, but actuarial risk calculations are not what I mean by a “humanistic risk-reward analysis.” Part of the risk-reward analysis a human conducts has to do with uniquely human emotions such as empathy or, by contrast, guts. The AI bot might say “we will fight until our supplies fall below a certain quantum of materiel or our casualties exceed X.” Churchill said “We shall not flag or fail. We shall go on to the end . . . We shall never surrender!”

Still, although I do not think AI will replace us as lawyers, I definitely believe our profession will quickly turn to being a heavy user of AI services, partly because they are likely to make us more efficient. We are, after all, a writing profession: from memos and briefs to contracts and laws, much less all the letters and emails we generate, many lawyers spend a lot of time drafting text. This is what AI does in the blink of an eye, and frankly with better grammar and style than a majority of practicing lawyers employ.

Finally, a word about the potential peril of AI, which my quorum Q&A illustrated. The answers the bots generated— each of which were generated in less than five seconds after I hit the “enter” key—contained wholly believable text. The Bard answer related to Illinois had me briefly questioning my sanity as a lawyer. I thought: “Did I neglect to check the Open Meetings Act for a definition in my previous research on this question!?” I was relieved to discover Bard had fabricated the text.

AI has the ability to generate enormous volumes of text of questionable provenance. Of course, we have experience with that: social media has been subjecting us to “text of questionable provenance” for over a decade now. As the saying goes, “a lie goes around the world before the truth puts on its shoes,”16 and I—and others greater than me, including the former Google CEO Eric Schmidt17—see great peril in that aspect of AI.

When you try out the AI bots, you realize that we aren’t getting this genie back in the bottle, so we will need to learn to live with it. And how will we learn to live with it? I don’t know. Congress already got its quorum together in May to discuss the topic, but you might be better to just go ask Bard. It will definitely give you a quicker answer!

16 And who coined that phrase—Twain? Churchill? Ask Bard! It will give you good answer, but not better than the human author behind this website: https://quoteinvestigator.com/2014/07/13/truth/.

17 Jonathan Haidt and Eric Schmidt, AI is About to Make Social Media (Much) More Toxic, The Atlantic (May 5, 2023), available at https://www.theatlantic.com/technology/archive/2023/05/generative-ai-social-media-integration-dangers-disinformation-addiction/673940/ (last accessed May 24, 2023).

4 Steps to Reduce Your Firm’s Cyber Risk

BY PETE SALERNO

We are all aware that cyber risk is a constantly growing problem. I recently read about how school systems are being attacked. The threats that they are running into are pervasive. While all organizations are under the persistent threat, law firms are prime targets for having data compromised.

In this article, I will demonstrate how you can identify the kind of information that your firm handles, the responsibilities you have for that information, and then, how you can fulfill those responsibilities with proper policies and procedures.

Everyone probably remembers seeing in the news the “I’m not a cat” Zoom court room incident in the early days of the COVID-19 pandemic. When I saw Rod Ponton, a county attorney in Presidio County, Texas, unable to turn off the cat filter on his Zoom call during the court hearing, I laughed.

In 2014 Pete Salerno started offering Cyber Security services, Email & Voice solutions, and Business Continuity services to small organizations.

While we may chuckle about it, and the judge said “Everyone involved handled it with dignity, and the filtered lawyer showed incredible grace. True professionalism all around!”, I think there are some serious takeaways.

It was reported that Mr. Ponton’s computer had a problem, so he used an assistant’s computer for the Zoom session. The assistant’s daughter had previously used the same computer and had installed a Snap Camera cat filter.

Lawyers and other professionals have a responsibility to keep specific information about their clients private. If that computer is used by the assistant while doing work for Mr Ponton, then that computer may have client data both in local files and remotely accessible files.

Pete has a BS in Engineering Science from the Franciscan University of Steubenville.

Making private client information accessible to direct viewing by the assistant’s family member is a mild risk, but allowing the download and installation of unvetted software can lead to malicious exfiltration of that private information, putting Mr. Pon-

ton and his firm at risk of Payment Card Industry Data Security Standard, HIPAA or other costly violations.

How do you keep your firm safe from this kind of exposure?

In this article, I will address how to analyze your current situation and what you need to do to ensure information is secure.

Cyber security can be really overwhelming. You need a plan. You need to identify where your vulnerabilities lurk, but you want to limit the scope. You will want to set some rules and be able to enforce and monitor them.

This plan is derived from several different frameworks, but mainly the NIST framework described later in this article.

• Step 1 Responsibilities. You identify what you are responsible for: what kind of information you collect, where it is held and used, etc.

• Step 2 Risks. Once you have listed your responsibilities, then you identify the risks related to those responsibilities.

• Step 3 Policies. You need to create some policies;rules that you’re going to follow which will help you mitigate the risks identified in step 2.

• Step 4 Procedures & Tools. Procedures help you follow the policies you set, and leverage tools to help ensure that things are being done properly.

In this way, Cyber security becomes manageable. Let’s look at these steps in more detail.

The first step asks the general questions:

• What information do you collect?

• What data do you access as you work?

• Will you need to comply with any regulations like PCI or HIPAA?

Think through the scenarios you may encounter during your workday, such as someone filling out an intake form to become a client. Does this form include personal identifying information, payment information, or business information? How sensitive is it?

Will you need to comply with PCI or HIPAA?

Do you have your client’s company’s confidential information? This may be patent information or trademark registrations or product development plans.

This step is essentially an information audit, and it provides a profile of the kind of data that you’re keeping.

The second step is a risk analysis. At this point, it is best to adopt a framework. Almost every business should begin with the NIST framework. If you’re doing sales or ecommerce, then include the PCI DSS requirements. Depending on your business you may need to meet some more specific frameworks: HIPAA, NERC CIP, DFARS CMMC, ISO 27001, etc. In this article I will describe the 2 most common: NIST and PCI-DSS.

The National Institute of Standards and Technology is a government agency that defines standards such as time, weights and measures. NIST created a cyber security framework, which is an overarching concept that many other frameworks incorporate.

As you can see in the illustration, NIST CSF is a ring because it is a continuous improvement cycle. For example, you IDENTIFY that you need to analyze the risk on your desktop computer.

This means you need to PROTECT that computer. So, at a minimum, you will install endpoint protection on it.

Next you address how to DETECT when an attack is underway. You can enable Rapid Detection and Response (RDR), which is a feature of some of the advanced endpoint protection products. RDR detects that malware is starting to execute a process on the computer. By looking at the profile of the applications that you typically run, it can identify that something abnormal is happening. It will provide a warning if, for example, an application is trying to access a system file it does not normally access.

The fourth step is to RESPOND. This is where you define how you want to handle potential attacks. Do you want to isolate the computer? Do you want to try to stop that application from running?

The last step is to RECOVER. Yes, you’ve stopped the attack, but was any data compromised or damaged? How do you get it back up into the normal running state?

From there you start the cycle over. You identify something new, for example email or your network, and start with how to protect it.

You’re constantly improving by running through that cycle using the same framework.

Another framework is based in the payment card industry. They’ve created a security standard, PCI-DSS. You’re not legally obligated to follow it, but if you do any dealings with the bank, they will likely require you to be certified for it. You could lose your ability to collect credit card payments if you don’t. If your credit card usage is minimal, you may be able to self-certify. If you have a significant number of transactions or have your own applications or network, then you may need to use a Qualified Assessor.

PCI-DSS contains 12 different modules that can be grouped into six general categories.

A. Secure Networks: Build and Maintain a Secure Network and Systems

1. Install and maintain a firewall configuration to protect cardholder data;

2. Do not use vendor-supplied defaults for system passwords and other security parameters;

B. Secure Cardholder Data: Protect Cardholder Data

3. Protect stored cardholder data;

4. Encrypt transmission of cardholder data across open, public networks;

C. Manage Vulnerabilities: Maintain a Vulnerability Management Program

5. Protect all systems against malware and regularly update antivirus software or programs;

6. Develop and maintain secure systems and applications;

D. Authenticate & Control Access: Implement Strong Access Control Measures

7. Restrict access to cardholder data by business need to know;

8. Identify and authenticate access to system components;

9. Restrict physical access to cardholder data;

E. Monitor and Test: Regularly Monitor and Test Networks

10. Track and monitor all access to network resources and cardholder data;

11. Regularly test security systems and processes;

F. Policies and Awareness: Maintain an Information Security Policy

12. Maintain a policy that addresses information security for all personnel.

Now that you are aware of the various frameworks that we modeled this process on, the next step is a risk analysis. The primary question is:where is the data? Where

is it being saved? How long is it being saved? Is there a data retention policy, where you delete data after a certain period of time.

You should begin to compile a profile of where you might have some vulnerability exposure.

• Many companies like Microsoft and Google don’t guarantee that they will have your data, all they guarantee is that they will provide you with their services. What if Microsoft does an update and service goes out for a couple of hours and when it comes back your data is missing? It was not malicious, but you still lost some data.

• Are you preventing information leaks? Are you checking to see that emails are not carrying passport numbers or credit card numbers?

• What happens if you are exposed to ransomware? Your server gets locked up; do you have a backup that is isolated from the server?

• Do you have that data backed up somewhere offsite? Is it you know up in the cloud somewhere that you can come back, wipe out the server and restore the data? What’s the time gap between backups? How long will it take to restore the data?

The resulting output of this analysis is something that’s called a Risk Register. The first part of the register is that you’re determining the probability of the identified risk happening. Secondly, you need to determine the severity of impact should that risk happen.

For example:

1. Your email system goes unavailable. It does not happen often, and it is a very low impact because it is Microsoft 365, you have a backup service, and all messages get delivered eventually. So, you score it appropriately and it may be mild or low priority.

2. You have a single server just holding all your data and you don’t have a backup on it and it’s all your client data. The probability of a single computer having a fault and crashing is relatively high. Losing all or a lot of your client data would be a large impact. This would score high on both axes and probably end up as a high priority.

Your Risk Register should be more than just a summary of what risks you have. You should assign who’s going to be responsible for taking on this task of mitigating each risk.

The register allows you to map out where you are today and highlight what you need to work on next. Now, it is time to create your policies.

The first policy you need is an umbrella document, which is normally referred to as the Written Information Security Policy (WISP). This will set up the overall scope and key definitions, at a very high level.

Subsequent policies will branch from the WISP. The purpose for any of your policies is to provide the definitions, architectures, and responsibilities within a given scope. Policies can enumerate what is allowed, what’s not allowed and what’s restricted.

It is important that everyone in the organization

acknowledge that they have received and read these policies. Otherwise, they’re just documents.

Back to the Zoom “I’m not a cat” incident; if you had a Computer Use policy that said, the computer is for business use only, the assistant would then have known that the daughter couldn’t use the computer and he wouldn’t have had that embarrassing moment of being a cat.

Another option might be to leverage access controls. For instance, your policy could say that you allow non-staff people unrestricted use of the computers, but they need to use a guest account. The guest account can be restricted to web access without administrative capabilities, so that malware is much less likely to be able to get installed on it.

A policy may also address email. Do you want to restrict email from private use? The policy would let staff know that any email within the business can be read by the owner of the business because it is business property. It is like any other business documentation.

There should also be a policy to address passwords. In the past, frequently changing one’s password was considered a good thing. The problem with that is people achieve password burnout and they start to choose less and less strong passwords. Maintaining many strong passwords is one reason for using a password manager, but many businesses are not using one consistently.

Another thing that has mitigated the frequent changing of passwords is multi-factor authentication. With MFA you have a username & password and then you have some alternate path of verification. It might be a text message or an acknowledgement emailed back to you with the code, or it might be an authenticator app.

Microsoft has an authenticator app, Google has one, there’s at least half dozen more authenticator apps out there. With strong unique passwords and MFA, the current recommendation is that you never change the password unless a breach has occurred. If a breach occurs, you want to be as conservative as possible and have everyone change and grow and evolve, changing their passwords as soon as possible. But in general, you don’t need to change the passwords automatically if you’re using a multi-factor method of authentication.

With basic policies in place, you can create proce -

dures to document how you plan to enforce the policies. Procedures will answer questions like:

• What gets recorded for your audit trail?

• How do you respond to incidents? How do you report an incident? What kind of triage needs to be done? Who gets notified?

• How are backups done? How do you verify backups are good? How do you restore from a backup?

• How do you on-board and off-board staff? How do you track assets?

You do not need to create everything from scratch. There are document templates you can leverage.

There can also be many tools whose use will be documented within both the policies and the procedures. Some of those tools you may already be aware of, and even use them now:

• Advanced endpoint protection including antivirus and malware detection with profiling and the ability to mandate that updates are applied.

• Email filtering to reduce SPAM and malware. You can also limit data leaks with outbound filtering.

• Encrypted messaging, which is important if you frequently deal in sensitive information with your clients.

• Password managers

• SaaS backup protection. Cloud services need backup protection the same as on-premises servers.

• Awareness training for staff training. This is important, and you can make it a contest: who’s got the best awareness score this month? But more importantly you can see how well the business itself is moving up in cyber awareness maturity.

• Network scanning. If you only have one or two computers a network scan isn’t going to tell you much more than what you might already know by looking at the computers themselves. If you have a dozen or more network devices, network scan will go through and find vulnerabilities, classify them and let you work on them.

This initial plan really has a 5th step. You should reiterate the process. Similar to the NIST framework where you have that circular view of things, you need a constant improvement cycle. As you reiterate, you get more and more secure. The goal is first to address the issues that you are required to do, and then the things that you should do, and then the things that you can do.

In this article, I will demonstrate how you can identify the kind of information that your firm handles, the responsibilities you have for that information, and then, how you can fulfill those responsibilities with proper policies and procedures.

The Future of Women in Law: A Q&A with Justice Elizabeth Rochford

BY THE ILLINOIS SUPREME COURT COMMISSION ON PROFESSIONALISM 1

When Justice Elizabeth Rochford was elected to the Illinois Supreme Court in November 2022, she joined the most diverse Court in Illinois history. This included a historic majority of five female Justices and three Black Justices.2

12Throughout her career, Justice Rochford has been deeply committed to issues surrounding women and the law. Her focus has spanned from ensuring access to justice for women through the court system to supporting opportunities for women to cultivate long-term and meaningful careers in the legal profession.

Justice Rochford has been active in the Illinois State Bar Association’s (ISBA) Standing Committee on Women and the Law, which focuses on areas of law uniquely affecting women, and has received the ISBA’s Woman of Influence

1 This article originally appeared in 2CIVILITY, News & Updates (Mar. 30, 2023), available at https://www.2civility.org/q-and-a-justice-elizabeth-rochford/. It is reprinted here with kind permission from The Illinois Supreme Court Commission on Professionalism. The “Commission is charged by Illinois Supreme Court Rule 799 to promote among the lawyers and judges of Illinois principles of integrity, professionalism, and civility; to foster commitment to the elimination of bias and divisiveness within the legal and judicial systems; and to ensure that those systems provide equitable, effective, and efficient resolution of problems and disputes for the people of Illinois.” See About the Illinois Supreme Court Commission on Professionalism2Civility, available at https://www.2civility.org/about/

2 Theodora Koulouvaris, Illinois Supreme Court makes history with female majority (Dec. 7, 2022), available at https://www.wcia.com/ news/illinois-supreme-court-makes-history-with-female-majority/

Award, the Illinois Judges’ Association’s Presidential Service Award, the Lake County Bar Association’s (LCBA) Access to Justice Award, the Outstanding Diversity Leader Award from the Diversity Scholarship Foundation, and the LCBA Leadership Service Award, among others.

Justice Rochford was appointed Supreme Court Liaison to the Commission on Professionalism in 2023.3

We had the opportunity to speak to Justice Rochford about the challenges women face in the legal profession, the significance of serving as part of the Court’s historic female majority, and why she is optimistic about the future of women in law.

1. THROUGHOUT YOUR CAREER, YOU HAVE WORKED TO RAISE AWARENESS OF THE UNMET LEGAL NEEDS OF WOMEN. WHAT UNIQUE CHALLENGES DO WOMEN FACE IN ACCESSING THE JUSTICE SYSTEM?

I have long been committed to advancing the Illinois

3 Commission Welcomes Justice Elizabeth Rochford as Illinois Supreme Court Liaison (Feb. 14, 2023), available at https://www.2civility.org/commission-welcomes-justice-elizabeth-rochford-as-illinois-supreme-court-liaison/

Supreme Court’s mandate to provide access to justice for all people, especially the poor and the vulnerable.

Both statistics and observation reveal that women comprise a significant portion of the disadvantaged populations that the Supreme Court had identified as having less access in law. The unique challenges women face include, but are not limited to, gender discrimination, lack of knowledge about their rights, social stigmas, economic and educational disadvantages, domestic violence, and time demands.

Although we are well-intentioned in our efforts to achieve parity for women, sometimes we miss the mark because we are unaware of the actual needs of the community.

To best appreciate the challenges faced by women, and other populations with reduced access, it is essential that we step out of the boundaries of the courthouse and into the communities we seek to serve in order to engage with them, identify their true needs, and respond with meaningful solutions.

2. YOU ARE A STRONG ADVOCATE FOR WOMEN IN THE LEGAL PROFESSION. WHAT ARE THE BIGGEST HURDLES WOMEN FACE IN ACHIEVING GENDER EQUITY WITHIN THE PROFESSION?

In law, women are significantly represented at junior levels, though with a dramatic reduction in representation at senior levels, and the gender pay gap is still very real. But progress is being made. Childbearing and raising are less frequently viewed as disqualifying, but rather as advantages of life experience and relatability. Increased remote work opportunities provide ever more flexibility in the workplace.

I am extremely optimistic for the future of women in law. Women are ready to lead the way, and not just on their own behalf, but for all people who have been historically marginalized. Women have a growing power base and a unique opportunity to speak up and open minds on human and professional inequities across the board including race, sexual identity, social circumstances, religious affiliation, ethnicity, income, and gender! I envision a bright future for our profession.

3. HOW HAVE THINGS CHANGED FOR WOMEN ATTORNEYS AND JUDGES SINCE YOU STARTED PRACTICING

LAW?

Women are present in our profession in far greater numbers than when I began to practice. But the most exciting change I have witnessed is that women are organizing,

both formally and informally, to offer each other encouragement and support. Women are making referrals, sharing meaningful navigation tools, serving as mentors to female colleagues, and the positive impact is immeasurable.

4. FIVE WOMEN NOW SERVE ON THE ILLINOIS SUPREME COURT. HOW DO YOU FEEL BEING PART OF SUCH A HISTORIC MAJORITY?

Our Illinois Supreme Court looks very different than it has at any other time in the past. We have a female majority of five women, and three Black justices, both historic achievements.

The visual of our Court creates a powerful image, and Illinoisans should be proud. We know that a diverse bench is vital to achieving a fair system of justice, and in promoting public trust. But in truth, the work of this Court will not be persuaded by alliances of gender, race, ethnicity, or politics, but rather a measured and competent commitment to follow the rule of law, the same established methods of dispute resolution on which our predecessors confidently relied.

Although much of our work is properly steeped in tradition and adherence to precedent, there is also always room for improvement.

Our Chief Justice Mary Jane Theis has taken an open-minded and progressive approach to this Court’s administration. She encourages suggestions and discussion about better procedures, in favor of reliance on merely the way things have always been done.

5. COULD YOU SHARE SOME FEMALE ROLE MODELS WHO INSPIRE YOU IN THE LEGAL PROFESSION AND BEYOND?

So many magnificent women have paved my path and inspired me, but no one more than my mother “LuLu,” who was a model of intelligence, grace, and kindness.

In the legal profession, I have long admired and relied on the standard established by women like trail-blazing attorney Alice Kolnick, my cousin and model of integrity Justice Mary Kay Rochford, and my judicial mentor and visionary, Judge Margaret Mullen.4

4 To read more about Justice Elizabeth Rochford, you can visit the Commission’s website at https://www.2civility.org/commission-welcomes-justice-elizabeth-rochford-as-illinois-supreme-court-liaison/

Women are ready to lead the way, and not just on their own behalf, but for all people who have been historically marginalized.

Experience Shows that Lawyers Must Beware of Chat GPT (For Now)

At the Lake County Courthouse, summertime is internship season. That means that flocks of law students have finally arrived to begin their internships with the court and with county agencies. These interns will get to learn about many of the practical aspects of lawyering by working directly with attorneys and judges.

That includes hearing effective oral advocacy in the courtroom, seeing how a compelling written argument is crafted in court filings, and gleaning insights on how to efficiently conduct legal research. But when it comes to familiarity with new AI-driven chatbot platforms, it seems that lawyers may have some catching up to do.

Just in time for internship season, a new legal cautionary tale started making headlines over Memorial Day weekend.1 It concerns lawyers’ misguided attempts to conduct litigation-related legal research using ChatGPT, a “chatbot” platform developed by a company called OpenAI and powered by artificial intelligence. This article offers an overview of the ChatGPT news stories and their implications for the practice of law in Illinois. But before sharing this tale of woe, the platform itself requires a brief introduction.

1 Kathryn Armstrong, ChatGPT: US lawyer admits using AI for case research, (May 27, 2023), https://www.bbc.com/news/ world-us-canada-65735769

WHAT IS CHATGPT?

For the uninitiated, this platform is what’s known as a “large language model” that can be used for natural language processing tasks such as generating text responses from scratch. The platform’s claim to fame is its ability to generate human-like conversational responses to text prompts. One commentor described it as “an AI that’s trained to recognize patterns in vast swaths of text harvested from the internet, then further trained with human assistance to deliver more useful, better dialog.”2 When coupled with a more traditional internet search engine such as Microsoft’s Bing, ChatGPT has been used “to process search queries, compile results from different sources, summarize

Alex Zagor is a Senior Staff Attorney for the 19th Judicial Circuit Court in Lake County, Illinois, where he assists the Court with adjudication of complex civil and criminal matters. The opinions expressed in this article are solely those of the author.

2 Stephen Shankland, Why We’re Obsessed With the Mind-Blowing ChatGPT AI Chatbot, (Feb. 19, 2023), https:// www.cnet.com/tech/computing/whywere-all-obsessed-with-the-mind-blowing-chatgpt-ai-chatbot/

When it comes to conducting legal research, lawyers using A.I. chatbots do so at their peril.

BY ALEX ZAGOR

documents, generate travel itineraries, answer questions and generally just chat with humans.”3

The ChatGPT platform in particular has enjoyed widespread popularity. After OpenAI’s “GPT-3.5” iteration was made widely available to the public in November 2022, over 1 million users reportedly signed up within six days of its release and then 100 million users registered within the next 90 days.4 As of the date of this article, the current version is “GPT-4.”

ChatGPT’s various applications to the practice of law have been touted for months by both legal academics and practicing attorneys. Already, much ink has been spilled on the implications of GPT-4’s ability to achieve a passing grade on all sections of the Uniform Bar Exam in the United States.5 While some lawyers might be filled with existential dread at the thought of being put out of a job by a fancy algorithm, others have been quick to seize upon this platform’s potential as a means of enhancing their efficiency and saving their clients money.

Aside from providing summaries of complex legal documents and scholarly articles, lawyers have been experimenting with having ChatGPT actually draft legal documents such as demand letters, discovery requests, nondisclosure agreements, and employment contracts.6 According to commentators, the resulting outputs from ChatGPT were serviceable rough drafts that offered great potential for a solo practitioner that lacked an existing template to begin with.7

A.I. “HALLUCINATION” IN LITIGATION

With such a serendipitous beginning, one might wonder how ChatGPT could go wrong as a supplemental

3 Id

4 See Katz, Daniel Martin and Bommarito, Michael James and Gao, Shang and Arredondo, Pablo, GPT-4 Passes the Bar Exam, at p. 2, (March 15, 2023). Available at SSRN: https:// ssrn.com/abstract=4389233

5 Id

6 Nicole Black, ChatGPT: What It Is And Why It Matters To Lawyers, Above The Law (January 19, 2023), https://abovethelaw. com/2023/01/chatgpt-what-it-is-and-why-it-matters-to-lawyers/

7 Id.

platform for legal research. As it turns out, things started to go sideways quickly. As soon as use of the platform exploded in popularity, stories began emerging about how ChatGPT and its competitors could manufacture falsehoods out of whole cloth and then double-down on them as the truth when skeptical humans dared to question the chatbot’s output.

This phenomenon is described by A.I. researchers as “hallucinations,” wherein the chatbot responds to questions with “irrelevant, nonsensical or factually incorrect answers.”8 One journalist explained these hallucinations by focusing on how ChatGPT processes different types of good-quality and bad-quality information from the internet. The process of formulating an answer inevitably results in chatbot responses “including explicit and implicit bias from the text they absorbed.”9 This means that chatbots often employ very convincing language with absolute confidence when crafting a response to a prompt, even if the chatbot’s answer is flat-out wrong.10

Despite the many disclaimers and caveats about the accuracy of ChatGPT’s outputs, stories also began to emerge about how attorneys were inviting disastrous consequences for themselves and their clients, by outsourcing the time-consuming task of legal research to a chatbot. Thus far, the controversy created by the personal injury lawsuit in Mata v. Avianca, Inc.11 has made the biggest splash in news headlines. Why all of the fuss? Because the plaintiff’s counsel in that case was forced to admit in open court that he had relied exclusively upon ChatGPT for researching case law, and then submitted misleading written arguments that were filled with citations and quotes to completely fabricated appellate court opinions.12

8 Cade Metz, What Makes A.I. Chatbots Go Wrong?, The New York Times (Mar. 29, 2023), https://www.nytimes. com/2023/03/29/technology/ai-chatbots-hallucinations.html

9 Id.

10 Id.

11 Mata v. Avianca, Inc., Docket No. 22-CV-1461 (S.D.N.Y. 2022)

12 Sara Merken, Lawyer who cited cases concocted by AI asks judge to spare sanctions, (June 8, 2023), https://www.reuters. com/legal/transactional/lawyer-who-cited-cases-concocted-byai-asks-judge-spare-sanctions-2023-06-08/

While some lawyers might be filled with existential dread at the thought of being put out of a job by a fancy algorithm, others have been quick to seize upon ChatGPT’s potential as a means of enhancing their efficiency and saving their clients money.

CAUTIONARY TALES

The lawsuit in Mata v. Avianca, Inc., began in New York state court, but was later removed by the defendant to the U.S. District Court for the Southern District of New York. The defendant’s attorneys then filed a motion to dismiss the lawsuit.13 In response, the plaintiff’s attorneys submitted a brief with multiple supporting legal citations to case law and asked that the motion to dismiss be denied.14 Soon thereafter, the defendant’s counsel sounded the alarm in its reply brief by pointing out that “the undersigned has been unable to locate most of the case law cited in Plaintiff’s Affirmation in Opposition, and the few cases which the undersigned has been able to locate do not stand for the propositions for which they are cited.”15 The trial court reacted to these developments by ordering plaintiff’s counsel to submit an affidavit annexing copies of certain cases cited in its previously-filed response brief.16

Although the plaintiff’s counsel of record complied with the court’s order and submitted an affidavit that purported to attach copies of the mysterious case law no one could find, a close inspection of the affidavit revealed a telling admission: the attached opinions “may not be inclusive of the entire opinions but only what is made available by online database.”17 Suffice it to the say that the trial judge found the plaintiff’s attachments wanting in several respects.

A week after receiving counsel’s affidavit, the trial judge issued an order to show cause why counsel for plaintiff should not be sanctioned for submitting copies of nonexistent judicial opinions.18 As part of its order, the trial judge wrote that “[t]he Court is presented with an unprecedented circumstance. A submission filed by plaintiff’s counsel in opposition to a motion to dismiss is replete with citations to non-existent cases…. Six of the submitted cases appear to be bogus judicial decisions with bogus quotes and bogus internal citations”19 As an example, the trial judge singled out the affidavit’s citation to an entirely fictitious opinion that was purportedly issued in 2019 by the United States Court of Appeals for the Eleventh Circuit.20 Not only did the affidavit include a false citation to the federal reporter, but also excerpts from a nonexistent court opinion.21

In an effort to explain themselves, the plaintiff’s attorneys submitted further affidavits. One of the attorneys, Mr.

13 See Defendant’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6), ECF No. 16, Mata v. Avianca, Inc., Docket No. 22-CV1461, (S.D.N.Y. Jan. 13, 2023).

14 See Plaintiff’s Affirmation in Opposition, ECF No. 21, Mata v. Avianca, Inc., Docket No. 22-CV-1461, (S.D.N.Y. Mar. 1, 2023).

15 See Defendant’s Reply Memorandum Of Law In Further Support Of Defendant’s Motion To Dismiss Plaintiff’s Verified Complaint, ECF No. 24, Mata v. Avianca, Inc., Docket No. 22CV-1461, (S.D.N.Y. Mar. 15, 2023).

16 See Order, ECF No. 25, Mata v. Avianca, Inc., Docket No. 22CV-1461, (S.D.N.Y. April 11, 2023).

17 See Plaintiff’s Affidavit of Peter LeDuca, ECF No. 29, Mata v. Avianca, Inc., Docket No. 22-CV-1461, (S.D.N.Y. April 25, 2023).

18 See Order, ECF No. 31, Mata v. Avianca, Inc., Docket No. 22CV-1461, (S.D.N.Y. May 4, 2023).

19 Id.

20 Id.

21 Id.

LeDuca, stated that he was effectively acting as a local counsel in the case, because the plaintiff’s primary attorney, Mr. Schwartz, was not admitted to practice in federal court.22 LeDuca stated that he did not personally conduct any of the legal research at issue in the order to show cause and had no knowledge of how it was conducted.23 LeDuca further stated that he “had no reason to doubt the authenticity of the case law [cited],” and that he had “no reason to…doubt the sincerity of Mr. Schwartz’s research.”24

For his part, Mr. Schwartz admitted in his own affidavit that he “consulted the artificial intelligence website Chat GPT in order to supplement the legal research performed.”25 In doing so, Schwartz stated that “the citations and opinions in question were provided by Chat GPT which also provided its legal source and assured the reliability of its content.”26 He also stated that he “has never utilized Chat GPT as a source for conducting legal research prior to this occurrence and therefore was unaware of the possibility that its content could be false.”27 Mr. Schwartz ultimately took responsibility for the error, expressed his regret for “having utilized generative artificial intelligence to supplement the legal research performed herein,” and vowed that he “will never do so in the future without absolute verification of its authenticity.”28

After an awkward evidentiary hearing on June 8, 2023, where the plaintiff’s attorneys were grilled by the trial judge, the matter was taken under advisement. As of the date of this article, the federal court in Mata v. Avianca, Inc. has not issued a formal ruling with respect to its prior order to show cause. But hot on the heels of that case, another news story hit the headlines out of Colorado state court.

Local news stations in Colorado recently reported on June 13, 2023, that an attorney licensed for about a year-anda-half ran into the same problem while working on his first civil litigation case.29 The lawyer reportedly turned to the chatbot platform in order to help him find case law that would support his client’s position in a motion.30 According to reporters, the attorney unknowingly submitted fake citations generated by ChatGPT, but then admitted his mistake to the court and stated the following in a court filing: “I felt my lack of experience in legal research and writing, and consequently, my efficiency in this regard could be exponentially augmented to the benefit of my clients by expediting

22 See Plaintiff’s Affidavit of Peter LeDuca, ECF No. 32, Mata v. Avianca, Inc., Docket No. 22-CV-1461, (S.D.N.Y. May 25, 2023).

23 Id.

24 Id.

25 Plaintiff’s Affidavit of Stephen A. Schwartz, ECF No. 32, Mata v. Avianca, Inc., Docket No. 22-CV-1461, (S.D.N.Y. May 25, 2023).

29 Quinn Ritzdorf, Colorado Springs attorney says ChatGPT created fake cases he cited in court documents, Channel 13-ABC KRDO, (June 13, 2023), https://krdo.com/news/2023/06/13/ colorado-springs-attorney-says-chatgpt-created-fake-cases-hecited-in-court-documents/

30 Id.

the time-intensive research portion of drafting.”31 After the judge overseeing the lawsuit couldn’t find the case law cited by counsel, he reportedly denied the motion and threatened to file a disciplinary complaint against the lawyer.32

REACTIONS FROM THE BENCH AND THE BAR

As a whole, members of the bar don’t seem to have much sympathy for other lawyers that have gotten into trouble with courts for using fake citations authored by ChatGPT. Generally, the sentiment most often expressed by legal commentators is schadenfreude. An experienced attorney interviewed by reporters in Colorado remarked that submitting false citations in court filings was unethical, and then he joked that ChatGPT’s efficiency and accuracy as a research platform could put him out of work.33

Some legal commentators have also mused that the proceedings surrounding the Order to Show Cause in Mata v. Avianca, Inc., may have a silver lining for attorneys: “[T] hey did an indirect public service to the profession. This proves that the only thing artificial intelligence can produce is artificial case law. Lawyers everywhere can breathe a sigh of relief that their jobs will not be in danger anytime soon.”34 While others have viewed those proceedings in a much more straightforward manner, i.e., a simple lawyering story: “This isn’t any different than turning in a brief with red-flagged cases or just slapping the first 10 results from a database search into the filing and calling it a day. The problem wasn’t the search that ChatGPT produced, it was the lawyer failing to bother to read the full opinions in the cases he chose to cite.”35

In thinking of this as a cautionary tale for the profession as a whole, lawyers in Illinois should bear in mind there are several court rules and rules of professional conduct that might apply to the use of ChatGPT or its competitors as a supplemental aid to legal research. As a good starting point, Rule 1.1 of the Illinois Rules of Professional Conduct states as follows: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”36 Comment 8 for this rule further states as follows: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal

31 Id.

32 Id.

33 See also KRDO Youtube, (June 14, 2023), https://www.youtube. com/watch?v=4RM_MmSgKGs&t=143s

34 Stephen Chung, Judge Contemplates Whether To Sanction Lawyers Who Used ChatGPT After Hearing Them Out, Above The Law. (June 14, 2023), https://abovethelaw.com/2023/06/ judge-contemplates-whether-to-sanction-lawyers-who-usedchatgpt-after-hearing-them-out/

35 Joe Patrice, For The Love Of All That Is Holy, Stop Blaming ChatGPT For This Bad Brief, Above The Law. (May 30, 2023), https://abovethelaw.com/2023/05/chatgpt-bad-lawyering/

36 Ill. R. Prof. Cond. 1.1

education requirements to which the lawyer is subject.”37

Furthermore, it is important to bear in mind Rule

3.3(a) of the Illinois Rules of Professional Conduct, entitled Candor Toward the Tribunal, which specifically prohibits attorneys from knowingly making or failing to correct “a false statement of fact or law to a tribunal,” as well as knowingly failing to disclose “legal authority in the controlling jurisdiction know to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”38 This means that any “[l]egal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal.”39

Illinois lawyers should be also be mindful of Illinois Supreme Court Rule 137, which authorizes monetary sanctions if a pleading, motion, or other paper is not “well grounded in fact” or is not “warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law.” In applying this rule, the Illinois Appellate Court has cautioned that “[a] paper filed in the best of faith, by a lawyer convinced of the justice of his client’s cause, is sanctionable if counsel neglected to make ‘reasonable inquiry’ beforehand.”40

Not to be left out, some trial judges have reacted swiftly to these ChatGPT news stories by putting standing orders in place to address the all but inevitable possibility of lawyers using AI-powered chatbots for purposes of legal research. One Chicago federal magistrate judge recently released updated standing orders stating as follows: “Any party using any generative AI tool in the preparation or drafting of documents for filing with the Court must disclose in the filing that AI was used and the specific AI tool that was used to conduct legal research and/or to draft the document. Further, Rule 11 of the Federal Rules of Civil Procedure continues to apply, and the Court will continue to construe all filings as a certification, by the person signing the filed document and after reasonable inquiry, of the matters set forth in the rule, including but not limited to those in Rule 11(b) (2). Parties should not assume that mere reliance on an AI tool will be presumed to constitute reasonable inquiry….”41 In contrast, another federal judge out of Dallas, Texas posted the following requirements: “All attorneys and pro se litigants appearing before the Court must, together with their notice of appearance, file on the docket a certificate at-

continued on page 25

37 Id. at cmt [8] (emphasis added).

38 Ill. R. Prof. Cond. 3.3(a)(1)-(2).

39 Id. at cmt. [4]; see also ISBA Professional Conduct Advisory Opinion No. 16-02, Illinois State Bar Association, (June 2016), Available at https://www.isba.org/sites/default/files/ethicsopinions/16-02%20 Court%20Obligations%20Frivilous%20arguments%20Reporting%20Lawyer%20Misconducts%20tracy_1.pdf

40 People v. Stefanski, 377 Ill.App.3d 548, 551-52 (2nd Dist. 2007) (quoting Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 931-32 (7th Cir. 1989)).

41 Standing Order for Civil Cases Before Magistrate Judge Fuentes, (N.D. Ill. May 31, 2023), Available at: https://www.ilnd.uscourts. gov/_assets/_documents/_forms/_judges/Fuentes/Standing%20 Order%20For%20Civil%20Cases%20Before%20Judge%20Fuentes%20rev’d%205-31-23.pdf, (emphasis added).

2023 LCBA

GOLF OUTING

JUNE 22, 2023

White Deer Run Golf Club

Board of Directors’ Meeting

May 18, 2023

Minutes of the regular meeting of the Board of Directors of the Lake County Bar Association held in the Executive Conference

BOARD OF DIRECTORS

Tara Devine President

Katharine Hatch

First Vice President

Daniel Hodgkinson

Second Vice President

Kevin Berrill Treasurer

Jeffrey Berman Secretary

Joseph Fusz

Past President

Hon. Jacquelyn Melius Director

Craig Mandell Director

Jeffrey O’Kelley Director

Sarah Raisch Director

Jeremy Harter Director

Judy Maldonado Director

Greg Weider Executive Director

Meeting Minutes The

Room of the Lake County Bar Association, 300-A Grand Avenue, Waukegan, Illinois, on Thursday, May 18, 2023.

CALL TO ORDER

President Devine called the meeting to order at 12:12 p.m.

ROLL CALL

Roll call indicated a quorum was established, with the following individuals present: Tara Devine, President; Katharine Hatch, First Vice President; Kevin Berrill, Treasurer; Joseph Fusz, Past President; Craig Mandell, Director; Jeremy Harter, Director; Hon. Jacquelyn Melius, Director; Judy Maldonado, Director; Jeffrey O’Kelley, Director; and Greg Weider, Executive Director. Sarah Raisch, Director, attended by Zoom. Jeffrey Berman, Secretary, attended by teleconference. Daniel Hodgkinson, Second Vice President, was absent.

ACTION ITEMS

Consent Agenda Items

• April 20, 2023 Board of Directors Meeting Minutes

The Draft minutes from the April 20, 2023 meeting of the Board of Directors was included in the agenda packet. There were no requests for other additions, corrections, or changes to the draft minutes.

• April New Members and Membership Report

The New Members report as of May 8, 2023 was included in the agenda packet, along with a full Membership report as of May 8, 2023.

A motion was made and seconded to approve the Consent Agenda. Upon unanimous voice vote, the motion was declared carried. The Consent Agenda is approved.

• Treasurer’s Report

The April 2023 Financial Report and supporting materials were included in the Agenda packet. Treasurer Berrill made a

BY JEFFREY A. BERMAN SECRETARY

presentation regarding the April 2023 Financial Report. Discussion followed.

A motion was made and seconded to approve the Treasurer’s Report. Upon unanimous voice vote, the motion was declared carried. The Treasurer’s Report is approved.

OLD BUSINESS

None

NEW BUSINESS

• LCBA Tax Returns

The LCBA draft tax returns for the period ending June 30, 2022 were included in the Agenda packet. Treasurer Berrill and Executive Director Weider made a presentation regarding the tax returns. Discussion followed.

A motion was made and seconded to approve the tax returns for the period ending June 30, 2022 to be filed. Upon unanimous voice vote, the motion was declared carried. The tax returns are approved for filing.

• Lifetime Memberships Requests

LCBA Honorary

Lifetime Membership Applications for Gary L. Schlessinger and Richard C. Daniels, along with supporting materials, were included in the Agenda packet. President Devine and Executive Director

Weider made a presentation concerning the Applications, including a review of the criteria for Honorary Lifetime Membership contained in the LCBA Bylaws. Discussion followed.

A motion was made and seconded to approve the Honorary Lifetime Membership Applications for Gary L. Schlessinger and Richard C. Daniels. Discussion fol-

ChatGPT

continued from page 21

lowed. The board requested additional information from Mr. Daniels The original motion was withdrawn and a new motion to approve Mr. Schlessinger’s application was made and seconded. Upon unanimous voice vote, the motion was declared carried. Mr. Schlessinger’s Application is approved. Mr. Daniels application will be reviewed once the additional information is received by the board.

• Draft 2023-2024

Budget

A draft Budget for 2023-2024 was included in the Agenda Packet. Executive Director Weider provided an update concerning ongoing efforts to prepare and finalize a bud-

get for the 2023-24 fiscal year, and requested Board input. Discussion followed.

Liberty Bell Awards

Luncheon and Retired Judge’s Member Reception

President Devine and Executive Director Weider made a presentation regarding two recent events, the Liberty Bell Awards Luncheon and the Retired Judge’s Member Reception. Discussion followed.

• LCBA Employee Handbook

Executive Director

Weider made a presentation regarding ongoing efforts to update the LCBA Employee Handbook, and requested Board input. Discussion followed.

OTHER MATTERS

• Committee Liaison Reports

Board members provided Committee updates.

• Executive Director Report

Executive Director

Weider presented his Executive Director Report for May, including updates on the calendar and upcoming events.

ADJOURNMENT

A motion was made to adjourn. Upon unanimous voice vote, the motion was declared carried. The meeting concluded at 12:58 p.m. The next Board of Directors Meeting is scheduled to take place on Thursday, June 15, 2023.

testing either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey. AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being. These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them….”42

LESSONS FOR/FROM LEGAL INTERNS

As a final point, a personal anecdote. In my own work with the 19th Circuit’s summer interns, I’ve always tried to look for recent, real-life, cautionary tales for purposes of il-

42 Mandatory Certification Regarding Generative Artificial Intelligence, (N.D. TX June 2, 2023), Available at: https://www.txnd. uscourts.gov/judge/judge-brantley-starr, (emphasis added).

lustrating various practical considerations that law students should know about. The ChatGPT news stories were too good of an opportunity for me to pass up. So during the first week of June, I asked a small group of first-year law students to find me copies of six fake cases from Mata v. Avianca, Inc using the fake citations that ChatGPT had created. I had hoped to confound the interns for a time and eventually have them throw up their hands in surrender.

But alas, the interns came back within a few minutes and told me that all of the citations were fake. After the fake cites wouldn’t pull up in their Westlaw or Lexis accounts, they simply googled the citations and ran right into the stories concerning Mata v. Avianca, Inc. And that is how my ruse came to an abrupt but somewhat satisfying end. The law students were not tripped in the slightest, and they immediately realized that something was amiss with their research assignment. So it appears that even licensed attorneys might have a thing or two to learn from a law student’s adeptness with emerging technologies.

Association Closes Year Strong

Thank you for another amazing program year! Through the active involvement of Lake County Bar Association members and the dedication of our volunteers the LCBA was able to offer seven legal seminars, twenty-four member events, eleven brown bag CLE

programs, three collaborative events, three free legal advice clinics, two community food drives, a school supply drive to benefit local school children and provide a Lawyers in the Classroom program to support Law Day. The efforts of the Lake County Bar Foundation worked to support the 19th

Annual Lake County High School Mock Trial Invitational, Constitution Day, Law Day, and the Veterans History Project. The Foundation through its fundraising efforts and the generosity of LCBA members was also able to provide philanthropic support to a number of worthy charities in the Lake County community. Combined with 111 committee, board, and foundation meetings it was a very engaging and productive year.

BY GREG WEIDER EXECUTIVE DIRECTOR

and legal education offerings. September will bring our annual shred event, a Young & New Lawyers Committee sponsored Cubs game and the Fall Criminal Law Seminar. Our member luncheon series will kickoff with the Pro Bono Awards in partnership with Prairie State Legal Services.

FLAG Committee Meeting

July 12 12:00 PM

Family Law Committee Meeting

August 16 12:00 PM

2023 Annual Shred Event

September 8 8-11 AM

Waukegan, IL

Civil Trial & Appeals Committee Meeting

September 13 4:00 PM

Member Luncheon

Lake County Update

September 19th

Criminal Law Seminar:

September 28th & 29th

LCBA Cubs Game:

September 22nd

Pro Bono Awards Luncheon

October 17th

Family Law Fall Seminar

October 26th & 27th

The LCBA finished the year with an energizing Installation Dinner and a wonderful annual golf outing. The momentum of these events will set the course for a new program year. We are currently in the process of our annual membership renewal. If you have not already taken the opportunity to renew your LCBA membership I encourage you to do so. The coming year promises to offer a number of entertaining social events

The foundation for a thriving legal community in Lake County begins with a strong Lake County Bar Association. If you have not taken advantage of being involved with the LCBA I recommend you do so. There is a wealth of opportunities to be engaged. Your participation will not only strength the LCBA but can provide professional and personal opportunities for growth.

Thank you again to all our members and volunteers who make the Lake County Bar Association a vibrant organization. I am looking forward to another great year.

Director’s Chair

INSTALLATION

OF THE LCBA OFFICERS , DIRECTORS AND LCBF TRUSTEES

JUNE 1, 2023 •

EXMOOR COUNTRY CLUB

Monthly

Committee Meetings

• RSVP to a meeting at www.lakebar.org.

• Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143.

• Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis.

Tel: 847-244-3143

Fax: 847-244-8259

MEMBER RECEPTION

MEMBER

Your $500 sponsorship includes:

OPPORTUNITIES

• Recognition in advertising before the event and on signage at the event

•Reception from 4:30 – 6:30 p.m.