In the recent few years, Artificial Intelligence has grabbed the attention of the masses. It has increasingly been incorporated by advanced and large industries. With the recent invent of Large Language Models (LLMs) like ChatGPT, the usage of AI has increased even further. The field of law is no exception to this mass adoption of Artificial Intelligence.
But with every new invention’s glamor, comes its dark side. For integration of Artificial Intelligence into legal practice, it is ethical concerns. Especially, with increasing usage of AI in research, document drafting, and other work products a number of ethical issues have cropped up. This leads to contemplation of whether it is even beneficial to use AI.
While there are various standards of conduct around the world for legal practitioners, it is universal that lawyers are bound to provide competent representation to their clients. Therefore, unauthorized utilization of AI programs for practice of law is especially relevant to the discussion of ethics contextually to AI. But at the same time, mindful utilization of such AI programs can streamline legal work and be quite beneficial for lawyers. This leads to the discussion in the following sections as the pros and cons of this new ethical dilemma is considered.
Adoption of AI in Legal Practice
Legal Research and Documentation
The earliest integration of AI into the legal field was Electronic Discovery or commonly known as eDiscovery. The process involves a lawyer training a computer to categorize documents in a case. A method of predictive coding is used which is essentially an AI which can classify documents as required. This helped lawyers to not only manage time better but also gather insights and identify relevant precedents at an unprecedented pace.
Automating Routine Tasks
One of the key reasons for the high adoption rate of AI in every industrial strata is because of its ability to accomplish repetitive tasks with high efficiency and no error. Therefore bespoke AI technologies created specifically for document review, due diligence, contract analysis or case law identification acts as a potent tool. Such technologies allow the legal professionals to focus on more strategic and complex aspects of their cases resulting in higher productivity and better results.
Ethical Responsibilities with the Advent of AI
The American Bar Association has pointed out that AI raises the most challenging and complex ethical questions in principles of competence, confidentiality, practice management and honesty. Therefore, lawyers need to be aware of the ethical risks that AI poses with unauthorized usage, confidential client data and indirectly waiving client-lawyer and lawyer work product privileges.
Competence
It is expected that every lawyer will perform to the best of their capabilities and is professionally competent to handle cases to serve their clients right. When lawyers use AI, they need to be aware of the extent of ethical responsibility that such usage poses. Secondly, lawyers must be aware as to how the AI tools are being incorporated to ensure they can continue to provide competent representation to their client. For instance, in a recent case, a New York federal judge sanctioned two attorneys for submitting a brief authored by AI that references non-existent case laws. Finally, with the rapid adoption of AI in legal practice and with more advanced tools being available, lawyers need to consider if not using such AI tools will itself be considered failure to meet the competence criteria.
Confidentiality
It is imperative for a lawyer to maintain confidentiality throughout the lifecycle of a case to protect the lawyer-client privilege. It is illegal in most countries to divulge case/client information without prior consent from the client. Some AI tools like ChatGPT do not guarantee any confidentiality of data like. For instance, OpenAI warns its ChatGPT users to not “share any sensitive information in [their] conversations.”
Even stating that “conversations may be reviewed” by OpenAI employees for improving their systems. Therefore, to ensure ethical usage, lawyers need to confirm that the AI tools employed have measures in place to protect information shared on the platform. In such circumstances, Nymiz can be a beneficial solution as it helps to anonymize or pseudonymize information on legal documents to ensure intact privacy while providing ability to share documents on a “need to know” basis.
Practice Management
Numerous AI tools have become common usage at law firms, and legal departments. But one of the key areas of focus to ensure seamless practice management through AI tools would be accountability for Accuracy, Reliability and Explainability. Accuracy is often dependent on the designer and the purpose of the tool. However, ensuring that the individual or institution has the capability of deploying such tools and has measures to evaluate output is very essential. Similarly, cross-verification processes like algorithms or training to evaluate outcomes will ensure reliability. Finally, the AI solution must be explainable to clients, opposite counsels, courts, or any other stakeholder to ensure transparency and fulfillment of ethical duties. Within the realm of practice management is also included the duty to supervise non-lawyers and subordinate lawyers. If such individuals are using AI tools the supervising partners need to ensure that all professional obligations are fulfilled. This will essentially entail understanding which AI tools are appropriate for which tasks and the accuracy of the outputs.
Honesty
A common tendency of AI and AI tools is generating illustrative or false data. As mentioned in the earlier section, algorithms, training or manual supervision needs to be incorporated to ensure that the output from such tools is real, relevant and credible. The lawyers are bound to ensure that their opinion, work, and work product is honest and reliable. Therefore, lawyers should not send an AI output directly to the clients but rather use it as a draft or preliminary version of the work which needs further refinement to create the final work product.
AI is not a distant future anymore, rather it is the present reality. Therefore, to assume that the legal field would not become more integrated with AI and its tools would be false. Therefore, it is imperative to understand and be aware of the legal ethics to ensure easy navigation through the process. As long as lawyers use AI to augment their work rather than replace it; and AI tools which do not involve human attorneys refrain from providing any legal advice; AI can be used for quality legal work, enhanced legal services and increased access to justice. There should always be a human element to the work of lawyers to ensure the ethical obligation of lawyers to their clients is always upheld.
