Lawyers' duty of competence now encompasses the effective use of AI tools
The incorporation of generative artificial intelligence (AI) techniques is transforming the legal profession. As these technologies advance, they create major ethical, competency, and legal practice issues. A recent opinion issued by the New York City Bar Association's Committee on Professional Ethics offers critical guidance to lawyers navigating this new world.
The Duty of Competence in the Era of AI
According to Formal Opinion 2024-5, lawyers' competence responsibility now extends to the appropriate use of AI tools. This rising standard necessitates that legal practitioners comprehend the law and be skilled in harnessing technology to improve their profession. It's no longer acceptable for lawyers to claim ignorance when they are caught using non-existent cases created by generative AI tools. Lawyers must get conversant with generative AI systems in order to serve their clients effectively.
Key Ethical Considerations
The Committee's opinion emphasizes many ethical problems regarding the use of AI in legal practice:
Confidentiality: Lawyers must ensure that any AI tools they utilize meet confidentiality requirements. This includes an awareness of how these technologies handle and store data. That means lawyers can't pass on the buck to their vendor, they need to verify with their software provider.
Competence: The opinion emphasizes the importance of lawyers knowing how to use AI tools. This requires not only technical ability but also a critical understanding of the technology's limitations and potential biases. If you haven't read the book 'Lawyer of Tomorrow, an Introduction to Your Future' I encourage you to. In that book, Richard Sasskid foreshadows what a lawyer's job will look like in the near future. He claims that the lawyer of tomorrow is an IT expert who happens to know the law. The two disciplines are going to be intertwined.
Transparency: Lawyers should be open with their clients regarding the use of AI in their legal work. Clients should be told when AI tools are employed in their cases and how they may affect the outcomes. This level of transparency might even lead to open discussions about alternative fee structures if using AI tools cuts down the lawyer's time spent on the file considerably.
Accountability: Ultimately, lawyers are responsible for the decisions made with the help of AI. The opinion makes it clear that relying on AI does not absolve attorneys of their ethical duties. As professionals we are solely responsible for so our work despite any 'assistance' from AI tools. We are probably held to a higher standard than other professionals who also use AI in their work.
Challenges and Opportunities
While using generative AI has various benefits, such as enhanced efficiency and the capacity to swiftly examine big datasets, it also introduces problems. Concerns concerning accuracy, prejudice, and the risk of overreliance on AI must be addressed. Legal practitioners are advised to embrace AI with caution, ensuring that human oversight remains an essential component of legal practice. I've written a detailed article about AI tools hallucinating (i.e. citing cases that don't exist) that you may find intriguing.
Furthermore, the deployment of AI tools creates potential for innovation in the legal industry. Firms that adopt these technologies can improve their service offerings, streamline processes, and increase customer happiness. As the legal landscape changes, those who adapt are likely to gain a competitive edge.
Conclusion
The advent of generative AI in the practice of law marks a substantial shift in how legal services are provided. By embracing AI while adhering to ethical standards, lawyers can improve their practice and better serve their clients. As the industry adapts to these developments, continued education and discourse about the implications of AI will be critical to ensuring that the legal profession retains its integrity and efficacy in a technologically driven future.
For legal practitioners, the adoption of AI is just beginning, and being informed will be critical to flourishing in this new environment.