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Why the Legal Profession Must Combat AI

June 1, 2023 General

Recently, 350 tech-industry leaders, scientists, and public figures sounded the alarm about the existential threat of artificial intelligence. Their public statement about AI was shocking:

            Mitigating the risk of extinction from AI should be a global priority alongside other societal-scale risks such as pandemics and nuclear war.

Wow. Could a statement be any more damning? Could the alarm bells be sounded any louder?

And some of the people who made the statement are the ones responsible for creating AI systems such as OpenAI and Google’s AI tech. They have unleashed the genie from its bottle and now want the world to know that the genie could ruin civilization as we know it.

Risks of AI to the Legal Profession

While there are obviously some benefits to AI, the risks far outweigh the rewards if it proceeds unregulated, especially in the legal profession.

I have seen many colleagues extol the benefits of AI for their law firms. Frankly, the fact that some of these “benefits” are even described as such is appalling and deeply concerning.

Here a few examples of how some attorneys are currently using AI who have actually boasted about these accomplishments publicly:

  1. Implementing “chat bots” to replicate attorney personalities so that clients can “interact” with artificial attorneys.
  2. Using AI to summarize clients’ medical records in personal injury cases.
  3. Utilizing AI to note inconsistencies in deposition testimony.
  4. Having ChatGPT write blog posts, memos, and even court pleadings such as motions for summary judgment. (One New York lawyer is facing sanctions for this currently).
  5. Using AI to draft letters to clients and opposing counsel.

I know I may sound like Blockbuster complaining about Netflix, but my concerns are numerous.

How AI Undermines a Lawyer’s Duties

Every lawyer has a duty under their state rules of professional conduct to maintain confidentiality with their client.  How can a lawyer be certain that he or she is maintaining confidentiality when it allows an artificial intelligence program to summarize a client’s medical records (not to mention HIPAA concerns…) Or allows a “chatbot” to communicate with a client on the attorney’s behalf?

It’s not only the duty of confidentiality at issue.  Every lawyer in America also owes duties to their clients and the court system which are threatened by AI.  Some of the relevant ones include the duties of:

  • Competence
  • Diligence
  • Supervision of non-attorney assistants
  • Candor

You can glance over the Alabama Rules of Professional Conduct and see how lawyers are walking on thin ice by using AI.

For example, a lawyer is responsible for supervising a non-attorney assistant working on a client’s case. Alabama Rule of Professional Conduct 5.3(b) states:

A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

It’s clear that an AI program should be considered a “nonlawyer.” But how can a lawyer supervise an AI program? Is that even possible?

Why the Legal Profession Must Combat AI Now

While there are certainly ways to implement AI without breaching any ethical or moral boundaries, we must set limitations on the use of AI either through rules of professional conduct or via legislation. My initial thoughts on such limitations would include:

  • Attorneys should be banned from using AI for any type of client communication.
  • Attorneys should be banned from allowing AI systems to review any confidential client information such as medical records and financial records.
  • Attorneys should have to certify under oath in every pleading filed in court that AI was not used in preparing anything submitted to the court. 

And there must be real enforcement mechanisms — serious financial penalties for first time offenders. Routine offenders should face worse.

If we don’t grapple with this beast now by regulating its use, lawyering as we know it will soon be extinct. The lawyers who use chat bots to talk with their clients or use AI to do the real legal work will probably thrive. They will have more time on their hands and, we all know, time is money.

And while those attorneys may make a pretty penny by delegating their duties to a robot, the entire legal system will suffer.  Even worse, every person in need of legal assistance will suffer.

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