OK, simmer down. You know that I am not fond of AI, at least so far, but have you ever tried to explain the relevant Rules of Professional Responsibility to a nonlawyer client, which is most, if not all, clients? Have you ever tried to explain even one rule to a client? Do their eyes glaze over? Do they start to twitch? Do they excuse themselves to get another cup of coffee? Can you blame them?
Trying to explain any of the rules — and usually there’s more than one involved in client representation — is like trying to put lipstick on a pig. That pig squirms and squeals, finally wriggling out of your grasp, running everywhere, anywhere, to avoid explanations of rules that govern us but not them. Consequences of running afoul of the rules are ours, not theirs.
These are our rules, prolix and constipated as they are. In the age in which we now find ourselves, with the increasing dominance of AI’s role, do we really need to have so many rules? Are we the only profession that has so many rules?
Try explaining to a client that we have dual responsibilities: we represent clients but we are also officers of the court. A client may well ask who comes first? Me or the court? While normally our stock in trade answer is “it depends,” if a client says that he is going to perjure himself, the answer is easy. The lawyer must withdraw. If the client does not understand why, then that may say something about client selection.
But in other situations, the rules may not be as easy to explain. Clients are not interested in knowing the rules; all they care about is winning the case, negotiating an advantageous contract, or sometimes just putting the screws to the adversary, without worrying about consequences. Clients do not care about the rules. In fact, most clients do not even know that the rules exist. All they care about is results, results, results, and how much they will pay in fees, fees, fees.
How about thorny conflicts issues? Just another example of how hard it is to explain the rules. Explaining what conflicts are, how they can arise, whether real or potential, is not easy. Explaining conflicts in a letter that requests a conflict waiver is hard. Even harder is explaining that while there is no conflict now, one could arise in the future, and then the situation gets even murkier.
AI explains conflicts like this: “Conflicts of Interest: Avoiding representation that is adverse to another client or significantly limited by other responsibilities or personal interests without consent.” Simple, straightforward. We think in terms of both “belt and suspenders.” Do we need to explain every possibly bad thing that could happen? We lawyers are voices of doom as we outline all the possible parade of horribles. Are our clients as risk averse?
I know, I know, the Rules of Professional Responsibility are established to protect clients from unscrupulous, lying, cheating, defrauding lawyers. But do they really do that? By the time some cases get into the discipline system, that lawyer is enjoying life in a country where he can’t be reached.
AI does simplify the rules so that ordinary people can understand them and what the attorney’s responsibilities are. Granted, AI’s explanations do not include all nuances and implications, but they do provide basic information that clients are most likely to encounter in the attorney-client relationship. AI explains, in plain English, such important client-facing rules as competence, confidentiality, communication, and conflicts. (the four Cs).
If AI can help explain a lawyer’s responsibilities to clients in terms that are easy to understand, then I am all for it. We twist ourselves into pretzels trying to explain every permutation that could rise in a representation. Do we really need to do that with clients who need our help untying the knots in which they have found themselves? Is it confusing to the client who feels intimidated by seeking legal counsel in the first place and now is second-guessing that decision? Is that the desired outcome?
I have always thought that the rules are cumbersome and unwieldy. Let the ethics experts chat among themselves. Lawyers in the trenches need cogent digestible explanations to provide to clients. And yes, while I do agree with Joe Patrice the AI can make lawyers dumber, AI can help even dumb lawyers explain important attorney client concepts.
Is there any reason why the rules couldn’t be simplified with the help of AI? Is it time for a rewrite? Should the acronym “KISS” (not the band) be used here? Should we try to “keep it simple, stupid?” Your thoughts?
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].