While most states, including Alabama and Tennessee, have not issued formal guidelines on a lawyer’s use of Artificial Intelligence (AI) tools, the ABA’s Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 512. These ABA guidelines give us a good understanding of how generative AI is helpful but not an excuse to ignore professional judgment and responsibility.
In the July/August issue, The Alabama Lawyer’s new editor, Wilson F. Green, says, “We [will] spend a lot of time talking about AI in law. How it will impact practice. How it should facilitate some tasks in matter handling. How its use should be disclosed, and at times limited.”
The debut of the public use of this technology was less than two years ago. But artificial intelligence has been deeply embedded within our daily lives for years. The algorithms used to suggest stories on our Internet newsfeeds, movies on our streaming platforms, the spellcheck features on our smartphone’s text messages and within our Word docs are all examples of artificial intelligence. Simply put, a lawyer's use of generative artificial intelligence technology can improve the efficiency and quality of a legal services to clients based on historical Internet data, which is produced by a result from a chatbot-like prompt that you create.
Lawyers fall into one of two camps when it comes to artifical intelligence: those that will take a “wait and see” approach and early adopters who have already welcomed and embraced it. Most commonly, AI is currently being used by lawyers for:
Electronic discovery in litigation (technology-assisted review of vast quantities of documents to categorize them as responsive or non-responsive and to segregate privileged documents);
Contract analytics (conducting due diligence in connection with mergers, acquisitions and large corporate transactions);
Judicial rulings (predicting how judges might rule on a legal question based on federal district data); and
Litigation conduct (evaluating how parties and lawyers may behave in current litigation based on their past conduct in similar litigation).
Do you have the propensity to be an early adopter?
Before you dive into these deep, murky waters on your own, become familiar with the ethical considerations for AI use discussed in Formal Opinion 512: Competence (Rule 1.1), Confidentiality (Rule 1.6), Communication (Rule 1.4), Candor Toward the Tribunal (Rules 3.1, 3.3, 8.4(c)), Supervision (Rules 5.1 and 5.3) and Fees (Rule 1.5). The Opinion will give you a good head start in understanding the types of issues you should consider when using AI in your practice.
The development of a regulatory framework around AI is moving at a cautious pace, and so should we. Only a few states - California, Florida, Michigan, and New Jersey – have established generative AI rules or guidelines. Whether or not Alabama and Tennessee ultimately implement AI rules for lawyers, the duty to verify the accuracy and sufficiency of work performed by generative AI will always remain ours alone.
In the words of the Fifth Circuit Court of Appeals in refusing to adopt a special AI rule, “Parties and counsel are responsible for ensuring that their filings with the court, including briefs, shall be carefully checked for truthfulness and accuracy as the rules already require. ’I used AI’ will not be an excuse for an otherwise sanctionable offense.”
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