Friday, November 10, 2023
I’m a law professor, the general counsel of a medtech company, a podcaster, and I design and deliver courses on a variety of topics as a consultant. I think about and use generative AI daily and it’s really helped boost my productivity. Apparently, I’m unusual among lawyers. According to a Wolter’s Kluwers Future Ready Lawyer report that surveyed 700 legal professionals in the US and EU, only 15% of lawyers are using generative AI right now but 73% expect to use it next year. 43% of those surveyed see it as an opportunity, 25% see it as a threat, and 26% see it as both.
If you’re planning to be part of the 73% and you practice in the US, here are some ethical implications with citations to select model rules. A few weeks ago, I posted here about business implications that you and your clients should consider.
- How can you stay up-to-date with the latest advancements in AI technology and best practices, ensuring that you continue to adapt and evolve as a legal professional in an increasingly technology-driven world? Rule 1.1 (Competence)
- How can AI tools be used effectively and ethically to enhance your practice, whether in legal research, document review, contract drafting, or litigation support, while maintaining high professional standards? Will it be malpractice NOT to use GAI in the future? Rule 1.1 (Competence), Comment 8, duty to understand the benefits and risks associated with relevant technology; Rule 1.3 (Diligence)
- How can you obtain and document informed consent from clients when using AI tools in your practice, ensuring that they understand the risks, benefits, and alternatives associated with these technologies? Rule 1.4 (Communication); Rule 1.6 (Confidentiality of Information)
- How can you obtain and document informed consent from clients when using AI tools in your practice, ensuring that they understand the risks, benefits, and alternatives associated with these technologies? Rule 1.4 (Communication); Rule 1.6 (Confidentiality of Information). Tip- Make sure your engagement letter discusses the use of technology and specifically addresses the responsible use of GAI. If needed, amend your engagement letter. Adequately anonymize client information in your prompts. Make sure to opt out of data sets. Check the terms of service and privacy policies of your AI tools.
- How do you rethink billing clients and what’s ethical if you have reliable AI models that can do some work in a fraction of the time? Is it still ethical to bill by the hour or do you use a flat rate? Rule 1.5 (Fees)
- How can you effectively explain and defend the use of AI-generated evidence, analysis, or insights in court, demonstrating the validity and reliability of the methods and results to judges and opposing counsel? Rule 3.3 Candor Toward the Tribunal; Rule 4.1 Truthfulness in Statements to Others
- What measures should you implement to supervise and train your staff, including paralegals and support personnel, in the responsible use of AI tools, ensuring that ethical and professional standards are maintained throughout the practice? Rule 5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers); Rule 5.3 (Responsibilities Regarding Nonlawyer Assistance)
Then there are the harder questions:
- How many lawyers and legal professionals will you replace?
- How many should you replace?
- Who and how will you retrain and upskill?
- Should your firm be developing your own large language models as some are already doing? What are the risks? The 2022 ABA Legal Technology Survey Report found that accuracy is the top barrier preventing many lawyers from adopting AI. Some insurance brokers have indicated the existing GAI tools are not fit for law practice because of reliability, accuracy, confidentiality, and copyright concerns,
If you're ready to take the deep dive or maybe just dip your toe in the AI waters, here are some resources to help you get started on the journey. Of course, with the way things are changing so rapidly on the legislative and tech development front, this list could be relatively useless in the next few weeks.
Are you using generative AI in the classroom? How are you preparing the next generation of lawyers? If you’re a practicing lawyer, are you ready to be part of the 15% this year or the 73% next year?