Okay, I know. This is probably the umpteenth recent article that has come across your desk regarding this topic. The perspectives range from doomsayers, “Adapt or Perish,” and the ponderous, “What happens next?” What I’d like to address in this article, however, is not just the future of AI but the professional ethics implications – and not solely in the “might be” or “could be” context, but more in the “you-have-already-violated-the-rules” context. >Smile< Don’t worry this won’t hurt a bit and I won’t tell your firm’s insurance coverage carrier. The good news? There is still time to fix things because, if you’re reading this, you’re probably still in practice and your client doesn’t realize what you did because you haven’t either.
I am not going to talk about what AI is or how it works because as I mentioned, those articles are out there. I am not going to say whether it is a game changer, a life-saver, or a gateway to allowing non-practitioners into the practice of law (and frankly they are already out there, surprise!). I also am not going to talk about AI in e-discovery because that horse left the barn, charged the hill and has received the blessings of the judiciary (as well as the previously overtaxed paralegals and associates). What I do want to talk about are the potential repercussions of the AI you are using now – all those super keen tools that are being used by your office to create documents and analyze data that you in-turn submit to the court or your clients. Here is where the various issues may lie.
The Model Rules of Professional Conduct were adopted in 1983 and have had periodic amendments since that time.[1] Probably the most relevant amendment to my discussion is the comment 8 to Rule 1.1 which was added in 2012 and has been adopted by 35 of the state bar associations.[2] At least a couple of articles that have been published on the advancements of Artificial Intelligence in the Legal Profession (I find that a bit of an oxymoron, but I digress) have advocated a Rules Revamp with a sharp eye on the impact AI may have on the practice of law.[3]
Comment 8 states that “[t]o 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 education requirements to which the lawyer is subject.[4]
This is the only provision in the Rules that requires any kind of technological savvy or degree of knowledge by a lawyer. While it does not go on to specify what constitutes “requisite knowledge and skill,” I do not think many would disagree with me when I say that, currently, there is a dearth of requisite knowledge and skill when it comes to using and understanding the technology of everyday practice.
For example, we have become so thrilled with the “Google-lization” of searching for cases that when we get our results, rarely do we look to see, and sometimes we can’t even really tell, how our search terms determined a case to be more relevant than another. At an AALL conference several years back, I warned that Westlaw Next was the ruination of legal research as we knew it. I was right, but I didn’t realize then that it would change the research of law to the satisficing of law.[5]
Now, we are searching without really giving much thought to the search, and when we get a case that’s simply passably close to what we need, we take it and leave. But we do so without thinking or even knowing what the pre-filters are in our search. Forget about the algorithms. Those change weekly, according to some who have studied the searches more in-depth than I have.[6] Ultimately, we don’t know what the search engine is doing or how it parses out the search and gives us results. We are just happy to have results that answer our question and off we go. This is a clear breach of Rule 1.1 Comment 8. We have no transparency and based upon what we know about the Big Vendors, we aren’t going to be getting any soon. Some of you may shrug and say it’s de minimis, but sitting judges are wondering why we are missing precedential cases to our clients’ issues.[7]
As to the contract- and pleading-generating AI programs that are out there – I have to admit, they are amazing. I said it. But, are these programs so amazing that they would result in law firms no longer needing associates? Moreover,, if law firms do continue utilizing associates, there is the distinct possibility that they will use these devices to their and their law firm’s peril. Why? Because even though they are digital natives, they still need to understand the foundational basis of the work that they do and they really don’t get that by, say, grabbing a complaint, and feeding it into a software system that spits out a completed pleading or contract without any thought process whatsoever from the associate. The phrase “a trained monkey could do your job” comes to mind in such a scenario. If that does become the case, these created documents and all permutations thereof are not covered under the Attorney Work Product Doctrine (reminder it’s a work product not word process doctrine), and as such, in the event of any lawsuit in our around the matter of those documents, they would all be up for grabs in a Discovery demand.
We also need to protect against the violation of client information, as outlined in Rule 1.6.[8] Some firms do indeed have amazing Risk Assessment Departments that look at every species of software that comes in and think about how it will expose the firm to risk; particularly the risk of being sued by their client. Many firms maintain retainer agreements, which could last for years depending on the duration of a transaction or lawsuit, with their clients. About 5 or 6 years ago, and perhaps even before, when cloud computing was fresh and new and completely hackable, many of our clients had do-not-share provisions (DNS) in the client agreements. But now, when we are fully immersed in the world of super fast document-generating, analysis-analyzing AI systems, we’re pushing out stuff to the cloud without thought or consideration of such agreements. As such, it could be argued that we should be updating our client agreements to eliminate that DNS provision since so little attention is being paid to them. No one speaks of it, but when I have asked attorneys if their client restricts them from sharing documents beyond office walls, “Of course!” is the constant reply. If that’s the case, attorneys better check what their software does vis a vis that DNS…otherwise, they could be facing violations of Rule 1.6, Rule 1.1 and potentially, Rule 5.5.[9]
Rule 5.5 violation is admittedly a bit of a reach, but it is worth mentioning. First, under the auspices of Citizen’s United, corporations were determined to be people too. Then, Hobby Lobby determined that corporations also had moral compasses. Next, a recent article showed how AI-driven software could feasibly run an LLC.[10] Well, if corporations can be all these things, they can practice law unlawfully by generating contracts and other agreements or drafting pleadings to be filed with a Court in a matter.[11] The software can do this now, and yes, it requires input from a person, but what if that person isn’t a lawyer? There is the supervision provision protection, but we are very close to seeing a machine do it all, and as harried as the associates and even paralegals seem to be to get work done in a timely fashion, it is not inconceivable for that supervision to lapse.
I would have to yield to the charge that much of this is, in fact, speculation. After all, the courts have themselves ruled that they have the power to regulate the practice of law, but concede they have the damnedest time identifying what the practice of law is.[12]
However, it should also be noted that much of this off-to-the-races talk about AI seems to not hold up on the business (read: client) side.[13] The legal profession is sliding down that slope whether it realizes it or not, or really, wants it or not. What the profession must do, and those of us that are members of the vanguard of that profession (law librarians, managers, directors, IT directors in law firms, and members of law firms’ Risk Assessment teams) must pay the strictest attention to all the implications and exact information from vendors on how exactly their AI programs work – what does it take and where does it take it to? What are the major factors and pre-filters running in the algorithm for search and is the data extracted kept? Shared? Stored?
Failing this, the legal profession is in peril and will fall on its own sword as a result of the AI it welcomed into its realm.
Rita Young, Esq., MLIS, is a business and research analyst for a global law firm and the opinions and views expressed herein are her own and do not necessarily reflect those of her employer.
Notes:
[1] According to the Introductory/Title Page of the 2015 (copyrighted) version of the American Bar Association’s Model Rules of Professional Conduct, “[the Rules] …were adopted by the ABA House of Delegates on Agugust 2, 1983, and amended in 1987, 1990, 1991, 1992, 1993, 1994, 1995, 1997, 1998, 2000, 2002, 2003, 2007, 2009 and 20012 and 2013.”
[2] Robert J. Ambrogi is tracking the “Tech Competence” Duty on his lawsitesblog. com. You can find it here.
[3] See for example, Katherine Medianik, Artificially Intelligent Lawyers: Updating the Model Rules of Professional Conduct in Accordance with the New Technological Era, 39 Cardozo L. Rev. 1497 (2018) and Ethical Use of Artificial Intelligence in the Legal Industry: The Rules of Professional Conduct, American Bankruptcy Institute reposting of the article initially appearing in its Emerging Industries and Technology Committee Newsletter, March 2018.
[4] Comments to Rule 1.1 of the Rules of Professional Conduct, American Bar Association, accessed here:
“ Maintaining Competence
[8] 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 education requirements to which the lawyer is subject.”
[5] Satisficing: General: Aiming to achieve only satisfactory results because the satisfactory position is familiar, hassle-free, and secure, whereas aiming for the best-achievable result would call for costs, effort, and incurring of risks. Accessed here.
[6]See, Professor Susan Nevelow Mart’s Results may vary in legal research databases, ABA Journal, March 2018 here, and note the Clarification at the bottom of the first page of her article. Professor Nevelow Mart’s study of the differences in the vendor databases is well-known among law librarians and she presented facets of her work at the most recent AALL Conference in Baltimore, July 2018.
[7] See generally, Bob Ambrogi’s article, “In Survey, Judges Say Lawyers’ Incomplete Research Impacts Case Outcomes, June 7, 2018, accessible here.
[8] Rule 1.6: Confidentiality of Information: (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
From: American Bar Association, Rules of Professional responsibility, accessed here.
[9] Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law: (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. Accessed here.
[10] See, Generally, Bayern, The Implications of Modern Business Entity Law for the Regulation of Autonomous Systems, 19 Stan. Tech. L. Rev. 93 (2015)
[11] While some may argue, and reasonably so, that the profession is protected against such notions by well-established black-letter law, (See, e.g, RESTATEMENT (THIRD) OF AGENCY § 1.04 cmt. e (2006) (“[A] computer program is not capable of acting as a principal or an agent as defined by the common law. At present, computer programs are instrumentalities of the persons who use them. If a program malfunctions even in ways unanticipated by its designer or user, the legal consequences for the person who uses it are no different than the consequences stemming from the malfunction of any other type of instrumentality.”).[Emphasis added]), this author argues that in THIS time of 2018 the instrumentalities now construct documents based on algorithmic comparisons of other similar type documents and standardized forms in mass quantities. Absent a strict oversight of output, a “glitch” could produce epic consequences for a client. Consider an error in a Choice of Law or Choice of Forum clause in a batch contract creation.
[12] The Missouri Supreme Court has repeatedly emphasized that the “judicial branch of government has the power to regulate the practice of law.” In re Thompson, 574 S.W.2d 365, 366 (Mo.1978) (en banc) (citing In re Richards, 333 Mo. 907, 63 S.W.2d 672 (1933) (en banc)). When applying Missouri’s unauthorized practice of law statute, the Missouri Supreme Court has written:
This [statutory] definition of “law business” …. is adequate for the issue before us, [but] it should also be noted that it is impossible to lay down an exhaustive definition of ” the practice of law.” … In any event, the General Assembly may only assist the judiciary by providing penalties for the unauthorized practice of law, the ultimate definition of which is always within the province of this Court.
Janson v. LegalZoom.com, Inc., 802 F.Supp.2d 1053, 1058-59 (W.D. Mo. 2011), quoting In re First Escrow, Inc., 840 S.W.2d 839, 843 n. 6, 7 (Mo.1992)
[13] Four out of 10 executives are concerned about the legal and regulatory risks of artificial intelligence, according to a recent Deloitte survey. “Artifcial Intelligence: Useful—But Risky, Deloitte Survey Says” Legal Tech News, Victoria Hudgins | November 05, 2018.
