AI Is Here. Now What?
The Bencher—July/August 2024
Ten of my ethics columns in The Bencher have been about technology and legal ethics, including surreptitious recording (2004), technological competence (2006, 2013), metadata (2007), social networks (2009, 2016, 2019), cybersecurity (2020), virtual practice (2021), and online criticism (2021).
Artificial intelligence (AI)—specifically generative AI like ChatGPT that creates content—might be viewed as just the latest in a long line of technological advances to be used (or not) and managed by lawyers. AI also might be viewed as much more consequential, as anything from establishing the foundation for an era in which lawyers will be free to perform their highest value work in the most intellectually rewarding manner, or a new means to unknowingly make serious mistakes, or the twilight of some areas of legal practice. These are not mutually exclusive possibilities.
All of us have likely seen articles about lawyers using AI to research and draft portions of a legal filing, only for the lawyer and client to find out—sometimes the hard way—that the AI program (un)helpfully has invented legal authorities that it cited. See, e.g., G. Chrostowski, “Analysis: Sanctions for Fake Generative AI Cites Harm Clients” (Bloomberg Law, April 3, 2024).
So, it is time to dust off the point that lawyers have an ethical obligation to be competent when using technology in performing legal services. American Bar Association (ABA) Model Rule of Professional Conduct (MRPC) 1.1 is “Competence”: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [8], added in 2012 (then as Comment [6]), states: “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.” At least 39 states have adopted an express duty of technological competence in their lawyer ethics rules.
Not only that, but lawyers should be aware that some jurisdictions are considering or have adopted new orders or rules about the use of AI in litigation practice. A limited number of judges or courts have proposed or adopted standing orders or rules to prevent use of generative AI in legal filings, while a somewhat larger number have proposed or adopted standing orders or rules allowing use of generative AI but requiring the lawyer to make a statement notifying the court of that use and confirming that the lawyer checked the accuracy of the work. See, e.g., R. Butler, “Generative AI and the courts: Balancing efficiency and legal obligations” (Thomson Reuters Aug. 28, 2023).
Along with all that, though, any time of potential profound change in legal practice probably is a good time to think about the role of empathy. A lawyer who uses generative AI is not themselves an automaton. Lawyers are expected to act diligently in their legal work, and, in advocacy roles, to zealously represent their clients, but that does not mean that a lawyer has no discretion in how to pursue a matter or that they cannot or should not advise a client about the consequences of proposed courses of action and relevant moral, economic, social, and political factors. See, e.g., ABA MRPC 1.2(c) and (d), and Comments [1] and [2]; ABA MRPC 1.3, Comment [1]; ABA MRPC 2.1 and Comments [1], [2], and [3].
Accordingly, a lawyer using generative AI not only should make sure it is accurate but also may wish to think about whether AI has steered the best course for the client and, if and as relevant, in a bigger picture.
John Ratnaswamy, Esquire, is the founder of The Law Office of John Ratnaswamy LLC, in Chicago, Illinois. He has served as an adjunct professor of legal ethics at the Northwestern University School of Law, a member of the Hearing Board of the Illinois Attorney Registration & Disciplinary Commission, and a member of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility. This column should not be understood to represent the views of any of those entities or Ratnaswamy’s or the firm’s current or former clients.