AI & LEGAL ETHICS
Time to Revisit the Rules ?
“ In each jurisdiction , and in the federal system , you need a committee or commission to address these issues and propose rules in that jurisdiction about how to utilize the resource that AI presents in a way that maximizes the benefits and minimizes the liabilities ,” Lynk says .
By Jeremy Conrad
In a 2020 Wolters Kluwer survey of legal professionals in the United States , 76 percent of respondents said that technology would make the biggest impact on their organizations over the next three years . And that was before two life-altering developments : the pandemic and the explosion of artificial intelligence ( AI ).
Now attorneys are likely to work remotely , sometimes in a jurisdiction where they are not licensed , bringing up concerns regarding the unauthorized practice of law ( UPL ). Lawyers are also facing expectations of using AI in their work to keep up with ethical obligations .
With such monumental changes , legal ethicists are calling for action . Technology won ’ t wait for the law , and both individual lawyers and their licensing organizations will need to act quickly to address changes in the practice environment .
AI is Not to be Ignored
AI presents all the challenges and opportunities of earlier technologies , and a few new ones . It would be foolish to ignore its potential and dangerous to ignore its risks , experts say . “ The legal profession today has got to recognize that its monopoly over legal services has allowed it to resist changes in technology far more than other professions . That ’ s got to change ,” says Myles V . Lynk , past president of the D . C . Bar and former senior assistant disciplinary counsel for appellate litigation with the D . C . Office of Disciplinary Counsel .
Lynk envisions a widespread commitment within the legal profession to studying the use of AI . Law schools have already started confronting the issue . This past March , Lynk , currently the Robert W . Foster Distinguished Visiting Professor of Law at the University of South Carolina School of Law , organized a symposium on the future of legal ethics .
MYLES LYNK University of South Carolina School of Law
Such a concerted effort would not be without precedent . “ The model for that is when the Civil Justice Reform Act was passed back in 1990 , and every federal court had to create a Civil Justice Reform Act committee to look at how to expedite civil cases ,” he says .
Institutional efforts would support the preexisting obligation of individual practitioners to undertake their own education regarding emerging technology , even if they are not using it themselves . “ Comment [ 8 ] to Model Rule 1.1 instructs lawyers to keep abreast of changes in the law and its practice , including the benefits and risks associated with relevant technology ,” says Lynk , who is a former chair of both the ABA Standing Committee on Ethics and Professional Responsibility and its Standing Committee on Professional Regulation .
Model Rule 1.1 requires practitioners to “ exercise ‘ reasonable ’ efforts . The use of the word ‘ reasonable ’ is meant to provide practitioners with a safe haven ,” Lynk says . “ Even if you were unsuccessful , if you took efforts and those efforts were reasonable under the circumstances to address the issue , you haven ’ t acted unethically . But if you ’ ve taken no efforts or [ if ] what you did was clearly and discernably inadequate , you ’ re in trouble .”
“ Lawyers , courts , and law firms need to have a better understanding of the technological resources available to them , and to be better able to use those resources , collectively , to expand access to legal services ,” adds Lynk . AI has been promoted as a possible solution to gaps in representation , and Lynk sees possibilities for AI in assisting pro se litigants or helping to balance disparities in representation in certain areas of law , but the risks are significant .
“ In landlord – tenant court . . . most tenants are not represented . They either don ’ t appear at all , or they appear prose ,” Lynk says . “ Would AI provide them with adequate assistance ? Is that justice ? It ’ s better than what we have now , but are we moving toward two systems of law , where some cases get decided with algorithms and other cases get decided by human beings ? This is a huge question , not just for
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