ChatGPT - A Legal Client's Friend or Foe?

ChatGPT was released by OpenAI in November of 2022. ChatGPT is a natural language processing tool that is powered by artificial intelligence. Stated another way, ChatGPT is an artificial intelligence chatbot that can interact with users by answering questions; drafting essays, letters, or poems; generating artwork; and more. ChatGPT has been described as the fastest-growing app of all time, with the Swiss bank UBS estimating that the chatbot had 100 million active users in January of 2023, only two months after it was released to the public. The huge increase in users has highlighted both the benefits and the potential pitfalls that the technology brings. Specifically, ChatGPT has been heralded for its potential to increase access to common legal services. However, legal clients should be wary of using ChatGPT instead of their lawyer, as ChatGPT may create new problems while attempting to solve old ones. This blog post will point out a few instances of how and when ChatGPT users should exercise caution while using the tool in efforts to supplant the advice of a lawyer.  

First and foremost, ChatGPT is not a human brain and cannot function as a one-for-one replacement for such. While it is true that ChatGPT can assist with legal research and document drafting, ChatGPT is not able to do many things that a lawyer can: make strategic decisions regarding the specific facts of a case, counsel with regard to the best decision for your situation, provide representation before a court, or create a durable risk prevention plan catered to a specific business. In short – ChatGPT does not know what questions to ask, when to ask them, or how to create the best legal strategy based on the information provided. Lawyers may be able to work with ChatGPT to provide the most efficient and cost-effective representation, but ChatGPT will not be able to take the place of a lawyer. 

Additionally, ChatGPT-drafted legal documents will not reflect the careful analysis of a practicing lawyer. ChatGPT has been criticized for writing without regard for the tone necessary to fit a specific situation. ChatGPT regularly drafts both prose and correspondence in an overly formal, overly wordy, and overly literal way. ChatGPT is programmed to be a neutral source of answers, therefore, in providing legal advice to users regarding a dispute, it may not be able to effectively “take a side” or provide analysis helpful to the furtherance of the user’s position. Again, ChatGPT will not be able to do what a lawyer can do: draft documents and correspondence appropriate for the situation, provide critical thinking and legal analysis in support of the situation, or provide a true legal opinion.  

Further, ChatGPT presents a number of potential risks that clients and lawyers alike should be aware of. These risks are detailed further below:

1. “Hallucinations”

Due to the nature and design of ChatGPT’s software, the chatbot can “hallucinate” information. “Hallucinations” occur when ChatGPT generates answers containing believable data that is completely false. For instance, when asked a number of legal research questions, ChatGPT may return answers containing cases that are wrongly named, wrongly cited, and/or entirely made up. Because of the potential for ChatGPT to provide inaccurate, incomplete, or false case law, any legal research done by the chatbot needs to be reviewed and refined by an attorney. 

2. Confidentiality Breaches or Inadvertent Loss of Trade Secret Protection

Data, especially data entered by users, is essential to the “learning” and improvement of ChatGPT. ChatGPT saves user-entered data each time that it interacts with a user, utilizing the stored data to better predict user behavior patterns and improve the answers it can provide. While ChatGPT does not necessarily sell or release user-entered data to unauthorized third parties, this user data can resurface in answers provided to subsequent users by the chatbot. Recently, companies such as Samsung, Amazon, and JPMorgan have restricted their employees from using ChatGPT, after finding proprietary code and trade secret information in answers that the chatbot provided to other users. When an employee enters trade secret or proprietary information into ChatGPT, the bot can, and likely will, use this information when it generates answers to similar questions asked by other users. This type of proprietary information regurgitation by the bot could lead companies to inadvertently destroy important trade secret protection or it could lead employees to inadvertently violate confidentiality and nondisclosure provisions in their employment contracts.

3. Inadvertent Copyright Infringement

ChatGPT, and other AI models, necessarily rely on existing content to create the new content they provide to their users. ChatGPT was initially “trained” by processing massive amounts of text data accessible via the Internet, which allowed the software to learn common patterns and associations between words and phrases. Because of this, ChatGPT can only produce based on what is already in existence in the world. Indeed, there have already been cases filed in federal court against OpenAI alleging that by training ChatGPT on copyrighted images and text, OpenAI and end users should be liable for copyright infringement when images subsequently produced by ChatGPT too closely resemble the copyrighted images used in the bot’s training. Therefore, chatbot users should be aware of the potential liability for copyright infringement when asking ChatGPT to produce a writing or image for them. 

As is clear from the examples of common pitfalls above, while ChatGPT is a worthwhile tool to obtain a cursory understanding of a legal issue, the full resolution of the issue is better left in the hands of an attorney. Utilizing ChatGPT with little or no review can leave a user at risk of gathering bad legal precedent or incorrect answers, exposing trade secrets, or committing copyright infringement. If you have any questions regarding this article or the use of ChatGPT, please reach out to one of our trusted Intellectual Property attorneys at BrownWinick. We are here to offer trusted legal advice and add value to any matter, including those with complex and novel issues.