Ethical Implications of Generative AI for the Michigan Lawyer: Navigating the Digital Landscape
Frequently Asked Questions (December 2023 Version)
How might the evolution of generative AI impact the legal profession in the next 5-10 years?
In the rapidly evolving landscape of legal technology, AI has emerged as a powerful tool with transformative potential. This list of Frequently Asked Questions (“FAQ”) is tailored for non-technical lawyers and seeks to demystify the ethical and operational aspects of AI in the legal arena. From understanding the basic definitions of AI and its integration in the legal sector to diving deep into the duty of technology competence, this FAQ addresses many key issues.
Central to the discussion is the lawyer’s ethical duty in an age of automation: ensuring competence, safeguarding client data, supervising non-lawyers effectively, and representing clients at a high level. In an era where technology and ethics intertwine even more tightly, this FAQ will help you navigate this complex and changing domain confidently.
The bottom line: it’s all about striking the right balance between leveraging AI’s capabilities and ensuring ethical practice.
Frequently Asked Questions
- What is generative AI and why should lawyers care about it? Generative AI refers to a subset of AI systems designed to generate content, whether it be text, images, or even legal documents. It is based on advanced machine learning models that learn patterns from vast amounts of data and can produce novel outputs based on that learning. reshape practices, making them more efficient and perhaps even more equitable. It is already considered to be a transformative technology. As legal professionals, understanding generative AI is crucial because of its potential to transform various facets of the legal process, from research and drafting to client interactions.
- Why is there so much buzz about generative AI in the legal sector? GPT4 advanced generative AI technologies to the point where an AI could achieve a passing score on the bar exam. Generative AI stands at the current frontier of legal technology innovation. By automating certain processes and introducing new capabilities, it offers opportunities to This technology promises to make certain legal processes more efficient, potentially revolutionizing how lawyers work.
- Are there ethical concerns about using AI in legal practice? Absolutely. Concerns range from data privacy and potential biases in AI-generated advice, to over-reliance on technology and the erosion of the human touch in legal practice. It’s crucial for lawyers to approach AI tools with a critical mind and ethical diligence. As AI becomes more integrated into legal practice, the duty of competence may evolve to include understanding and appropriately using AI tools, ensuring they align with ethical standards and don’t compromise the quality of legal services.
- How might AI tools impact the attorney-client relationship generally? AI has the potential to both enhance and challenge this relationship. While AI can improve efficiency and reduce costs, over-reliance without transparency might erode trust. Ensuring clear communication about the role of AI in legal processes is essential. While the core fiduciary duty—to act in the client’s best interest—remains unchanged, how lawyers uphold this in an AI-integrated practice might evolve, emphasizing transparency, tech competence, and responsible tool integration.
- What is the lawyer’s duty of technology competence? The duty of technology competence mandates that lawyers must maintain sufficient knowledge about the benefits and risks associated with relevant technology. It is set out in Comment 8 to the Duty of Competence (Rule 1.1). As legal practice increasingly relies on tech tools like AI, understanding and using them ethically and effectively becomes essential. As AI tools become commonplace in legal processes, the duty of technology competence may expand to cover understanding these tools, their benefits, limitations, and potential ethical pitfalls, ensuring lawyers use them responsibly. Beyond understanding the AI tool itself, ensuring competence means corroborating AI-generated advice with traditional methods, seeking second opinions when unsure, and continuously updating one’s knowledge about the technology.
- Are there guidelines on how lawyers should ethically use AI? Several legal associations are formulating guidelines. Familiarizing oneself with resources form the State Bar of Michigan, the American Bar Association and the resources set out at the end of these materials can offer guidance on the ethical use of AI in legal practice.
- What are the implications for attorney-client privilege when using generative AI? If generative AI tools access and process sensitive client information, there’s a potential risk to confidentiality. Ensuring that these tools respect and safeguard attorney-client privilege is paramount. Ensuring that AI tools respect and safeguard attorney-client privilege is paramount. This involves vetting vendors rigorously, ensuring data encryption, and understanding where and how client data is stored and processed. AI tools, especially those cloud-based, might inadvertently expose sensitive client communications if not properly secured. Lawyers must ensure that AI tools adhere to stringent security standards to maintain attorney-client privilege.
- How does the duty of confidentiality intersect with AI use? When using AI tools, especially cloud-based ones, lawyers must ensure client data is encrypted, stored securely, and not accessible by unauthorized parties, upholding the duty of confidentiality.
- How might generative AI perpetuate or amplify biases? What’s the ethical concern? Like all AI systems, generative AI learns from data. If the data contains biases, the AI might perpetuate or even exaggerate those biases. For lawyers, this can raise serious ethical concerns, especially if AI-generated advice or documents unintentionally favor one party over another due to these biases. AI systems, including generative models, can manifest biases from their training data. This raises ethical concerns, especially if biased AI-generated advice inadvertently favors one party over another, leading to unjust outcomes. subtle biases might not manifest immediately. It’s crucial to remain vigilant, consistently test AI tools, and ensure diverse and representative training data to minimize such biases.
- I’ve heard about transparency in AI. Why is it important ethically for lawyers? Transparency refers to understanding how an AI system arrives at its decisions. For lawyers, it’s essential to be able to explain to clients, courts, and other stakeholders how certain AI-driven decisions or recommendations were reached, ensuring trust and upholding our ethical obligations. “Black box” refers to AI systems where the decision-making process is opaque. For lawyers, it’s essential to understand and explain how AI recommendations are reached, both for trust and to ensure that decisions are made ethically and justly.
- What happens if an AI tool makes an error? Who’s responsible? The ethical responsibility often rests with the lawyer. While the AI tool may have generated the content, lawyers must exercise due diligence to ensure that the advice or document is accurate and appropriate. While generative AI can be a powerful tool, it’s not infallible. It’s crucial to double-check AI-generated advice and ensure that it aligns with legal standards and the specific nuances of each case. Understand the tool’s limitations, corroborate AI-generated advice with traditional research, and consider the specific nuances of each case.
- How do I supervise non-lawyers using AI tools in my practice? Supervision involves ensuring non-lawyers use AI responsibly, understand its limitations, and maintain client confidentiality. Regular training sessions, guidelines, and clear protocols can aid in effective supervision. Key concerns include ensuring the quality of work isn’t compromised, client data remains confidential, and that non-lawyers don’t unintentionally practice law or make critical legal decisions without proper oversight.
- Can AI tools replace paralegals or junior associates? While AI can handle some tasks typically assigned to paralegals or junior associates, the human touch, expertise, and judgment they offer remain crucial. AI should be seen as complementary, aiding rather than replacing these roles. Supervision will also be important.
- Will I be held ethically responsible if I don’t adopt AI tools in my practice? While not using AI won’t inherently breach ethical duties, if failing to use available technology leads to inefficiencies or oversights that harm clients, there could be ethical implications. Continuous learning and updating practice methods remain essential.
- How can AI tools affect client expectations in terms of service speed and cost? Clients might expect faster turnarounds and reduced costs as AI integration becomes more common in the legal sector. Managing these expectations while ensuring quality and ethical service is a delicate balance lawyers must strike.
- Does relying on AI compromise my ability to represent clients effectively? Not necessarily. If used correctly, AI can enhance representation by improving efficiency. However, over-reliance without understanding the tool can jeopardize the quality of representation.
- How can I balance efficiency, brought by AI, with ethical representation? Balancing involves using AI for routine and data-heavy tasks while ensuring that critical decisions, especially those requiring nuanced human judgment, remain in the hands of the lawyer. Open communication with clients about the role of AI is also crucial.
- How can AI affect client-lawyer communication? AI, especially chatbots, can streamline initial client interactions. However, it’s vital to ensure that AI tools don’t replace critical human-led conversations, especially when discussing complex legal matters.
- How can I ensure my clients are comfortable with the integration of AI in their legal process? Transparency is crucial. Clearly explain how and why AI tools are used, their benefits, potential limitations, and ensure clients that human expertise remains central to their representation.
- With AI predicting legal outcomes, how do I ensure I’m not over-relying on it? While AI can assist in predicting outcomes based on historical data, every case has unique nuances. Lawyers must combine AI insights with their expertise, understanding of current law, and specifics of the case at hand.
- Could AI lead to unauthorized practice of law (UPL) issues? Potentially. If AI tools are used to provide direct legal advice to clients without lawyer oversight, it could be seen as UPL. It’s essential to ensure that AI augments, rather than replaces, the lawyer’s role.
- Can AI-generated advice ever be considered “legal malpractice”? If AI-generated advice leads to significant harm due to its inaccuracy and a lawyer blindly follows it without due diligence, it could potentially lead to claims of malpractice. Lawyers must always verify and corroborate AI advice.
- Are there risks of AI tools being “over-trained” on specific types of data, leading to narrow or biased advice? If AI is trained predominantly on a narrow dataset, it might provide skewed advice. Diverse and comprehensive training data is essential to prevent such issues.
- How can AI tools affect the cost of legal services? With increased efficiency, there’s potential for cost reduction. However, lawyers must balance this with the ethical obligation to provide competent representation, ensuring that reduced costs don’t compromise quality.
- How can I vet AI vendors to ensure they align with ethical guidelines? Vetting involves understanding a vendor’s data sources, security measures, AI’s decision-making process, and any known biases or errors. Seeking independent reviews and testing the tool before full integration can also help.
- How might AI impact the client intake process? AI can streamline client intake by automating data collection, performing preliminary case analysis, and identifying potential conflicts of interest. However, a human touch remains essential to understand client needs fully.
- What are the potential pitfalls when AI tools communicate directly with clients? Direct AI-client communication might lead to misunderstandings, missed nuances in human communication, or inaccurate advice. It’s essential to monitor and limit AI’s direct interactions with clients.
- Are there ethical concerns surrounding the use of AI in legal advertising and client outreach? Yes. AI-driven advertising must be transparent, not misleading, and respect privacy regulations. Lawyers must ensure that AI doesn’t make exaggerated claims or target vulnerable individuals unethically.
- Can AI assist lawyers in maintaining records and ensuring compliance with record-keeping regulations? Absolutely. AI can automate record-keeping, ensure timely data backups, and alert lawyers to potential compliance issues or data breaches, assisting in upholding ethical standards.
- Could AI lead to a breach of the duty of loyalty to a client? If not used judiciously, AI might inadvertently expose client data or strategies, especially in firms representing opposing parties in different cases. Ensuring strict data segregation and security is essential.
- Can AI-generated documents be submitted as evidence in court? The admissibility of AI-generated documents as evidence is an evolving area. Lawyers need to understand the origin of such documents, their authenticity, and the technology behind their creation to make a compelling case for their inclusion.
- If AI assists in a legal decision that’s later challenged, how can I defend its use? Familiarizing oneself with the technology behind the AI tool, its training data, and decision-making process is key. This knowledge, combined with a lawyer’s judgment and expertise, will aid in presenting a robust defense.
- How do we ensure fairness and equality in the outcomes of generative AI tools? By critically assessing the data used to train these systems and regularly testing them for biases. It’s also essential to remain actively involved in the decision-making process, using AI as an assistant rather than a replacement.
- Can AI play a role in pro bono services and increasing access to justice? Indeed. AI can streamline routine tasks in pro bono cases, making legal services more accessible. Chatbots, for instance, can provide basic legal information to those who otherwise couldn’t afford it. Promoting AI literacy, offering community training, and creating subsidized or free AI tools for underserved populations can ensure a level playing field, preventing potential imbalances in access to justice.
- How can AI affect alternative dispute resolution processes? AI can help in analyzing past resolutions to suggest possible outcomes, making the mediation or arbitration process more efficient. However, human judgment remains critical in understanding the intricacies of each case.
- How can I vet AI vendors for ethical considerations? When selecting an AI vendor, ensure they prioritize data security, transparency, and have protocols to address biases. Understanding their data sources and training processes can also offer insights into their ethical standards.
- What might be the top ethical challenges I should prepare for in the future?
The evolution of AI will likely bring challenges related to:
• Greater autonomy in AI decision-making.
• AI’s role in shaping legal standards and precedents.
• Ethical considerations in globalized legal cases involving AI.
• The balance between efficiency and human judgment.
- What especially difficult ethical issues might arise over the next three to five years?
• Transparency in AI Decision-Making: Ethical obligations of lawyers to understand and explain AI-powered recommendations.
• Accountability in AI Errors: Who bears the ethical responsibility when an AI tool makes an incorrect prediction or recommendation?
• Informed Consent with AI Tools: Ethical considerations when using AI in client interactions or on their behalf.
• Fair Representation Using AI: Ensuring AI doesn’t compromise a lawyer’s duty to provide competent representation.
• Authenticity of AI-Generated Documents: Ethical challenges in determining the authenticity of AI-generated evidence or contracts.
• Avoiding Over-reliance on AI: Ensuring AI tools don’t lead to complacency or ethical shortcuts in legal practice.
• Ethical Advertising and AI: Concerns about overstating the capabilities of AI-powered legal services in advertising.
• AI, Conflict of Interest, and Disclosure: Understanding potential conflicts when AI tools are developed by parties with vested interests.
• Client Autonomy and AI Recommendations: Respecting client decisions that diverge from AI suggestions.
• AI in Alternative Dispute Resolution: Ethical considerations when AI tools are used in mediations or arbitrations.
• Financial Incentives and AI Adoption: Addressing the ethical challenges when there are financial incentives for lawyers to adopt specific AI tools.
• Duty to Warn about AI Limitations: Ethical obligations to inform clients about the potential limitations or inaccuracies of AI tools.
- Should the use and/or non-use of AI be addressed specifically in client engagement letters? Reaching an understanding with clients about the use of AI is highly recommended, especially when you plan to be using it or your client has the expectation that you will use it. It is advisable to address generative AI permitted uses in your engagement letters, perhaps as a modification or addition to your generation provisions on use of legal technology, ideally giving you flexibility in making decisions about current and future uses of AI.
- Lastly, will AI replace human lawyers? Remember that AI is a tool, not a replacement. Prioritize interpersonal relationships, active listening, and empathy. Use AI to handle routine tasks, but let human judgment, ethics, and expertise drive the core of your practice. Finding the best place for humans to fit into the loop with AI will become a key lawyers skill of the future.
Some Useful Resources
- Melanie, Mitchell, Artificial Intelligence: A Guide for Thinking Humans. An excellent plain language discussion of AI that I use as a foundation book for my AI and the Law Class at Michigan State University College of Law.
- Ethan Mollick, One Useful Thing (https://www.oneusefulthing.org/), articles and email newsletter from one of the premier writers and thinkers on practical uses of generative AI.
- ABA Model Rules of Professional Conduct – The American Bar Association’s guide on ethical rules.
- Legal Talk Network – Featuring various podcasts, including The Kennedy-Mighell Report, which discusses the intersection of law and technology, especially the episode “The Current State of Generative AI in Legal” (https://legaltalknetwork.com/podcasts/kennedy-mighell-report/2023/07/the-current-state-of-generative-ai-in-legal/).
- Legal Technology Resource Center (LTRC) – An initiative by ABA, offering guidance on leveraging technology in the legal sector.
- Dennis Kennedy, “Adding a ‘Group Advisory Layer’ to Your Use of Generative AI Tools Through Structured Prompting: Using Personas for Advisory Boards, Task Forces, Mastermind Groups, and Other Collections of Personas to Assist in Evaluations, Assessments, Recommendations, Decision-making, and much more (Including Law-related Examples)” at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4570860.
- Dennis Kennedy is the Director of the Michigan State University Center for Law, Technology & Innovation, the author of the book, Successful Innovation Outcomes in Law, and the founder of the Law Department Innovation Library (www.ldilibrary.com). He writes and speaks frequently on legal innovation and technology topics, including AI, focusing on law departments. He has co-hosted The Kennedy-Mighell Report podcast on legal technology with Tom Mighell since 2006.
This post is a version of a handout for a panel presentation I participated in for the Institute of Continuing Legal Education on December 7, 2023.
I have placed this version of the handout under the Creative Commons CC BY 4.0 License. I’m happy for you to use this material with attribution to me.
This work is licensed under CC BY 4.0
[Originally posted on DennisKennedy.Blog (https://www.denniskennedy.com/blog/)]
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