As you consider the way your law firm uses technology, it’s worthwhile to consider the ethics of AI usage in the legal world.
Artificial Intelligence (AI) has begun to revolutionize many industries, and the legal sector is no exception. Law firms are increasingly turning to AI-powered tools and systems to streamline processes, enhance productivity, and deliver cost-effective legal services.
The benefits of AI are undeniable. However, law firms must examine the ethical implications that arise from its adoption.
In this article, we will explore some of the top ethical issues your law firm should consider before embracing AI. While the considerations listed here certainly don’t comprise the universe of ethical concerns stemming from artificial intelligence, this list will certainly give you and your colleagues some initial food for thought.
Considering AI ethical issues for law firms
Artificial intelligence has been around for a long time, even in legal technology. Tools like predictive coding, for example, have turned once-laborious processes like document review on their heads, potentially saving legal clients thousands of dollars and delivering exceptional results.
The difference now is that AI-powered tools are becoming much more popular. You can easily find hundreds of AI-powered programs that promise incredible results with little effort. Instead of just working in the background to handle one specific task, flashy AIs like ChatGPT seem to offer impressive results and infinite potential.
Take care. As a legal professional, you’re now faced with the challenge of evaluating lots of AI options to determine which ones are worth trying and which might put you at risk.
Both the technology itself and the marketplace change so rapidly, it’s hard for the legal system to keep up. Most bar associations haven’t yet issued much guidance to help law firms use AI responsibly.
It’s up to you to understand how the technology works and consider these possible ethical pitfalls of AI:
#1: Plagiarism
One of the most popular functions of AI is its ability to draft fairly complex legal documents in a matter of seconds.
AI produces things like legal briefs, memoranda, contracts, and client letters almost as quickly as the user can make the request. While this function is undoubtedly useful, it raises key ethical concerns, including the potential for plagiarism.
The reason for this is simple.
AI systems are trained on vast amounts of data including legal documents, law review articles, cases, treatises, contracts, and precedents already in existence.
While having lightning-fast access to this information for purposes of drafting legal documents can be advantageous, there is a very real risk that AI-generated content may inadvertently reproduce someone else’s work without proper attribution.
In light of this risk, law firms must establish clear policies and guidelines to ensure that AI-generated content respects copyright laws and intellectual property rights.
For example, the firm could mandate that an AI-generated work product be run through one of the available tools for detecting plagiarism. Alternatively, you might use AI for outlining or editing, but require a minimum amount of original input from a human.
Of course, before your firm does this, it has to recognize and accept that its employees are probably already using AI to generate work product.
Putting the firm’s collective heads in the sand won’t help the issue, and an outright ban on use of AI could mean you’re depriving your clients of cost-effective legal services. Instead of ignoring the technology, why not put measures in place to ensure that the content that comes out of AI is based on non-plagiarized material?
That said, IP concerns aren’t even half the battle here.
Let’s dive into some of the greater ethical traps that are set any time someone uses AI to generate a legal document.
#2: Diligence
Legal professionals have a duty to exercise diligence in their work. In light of this, there’s no way your firm should be relying on AI-generated content without strong safeguards in place.
At a minimum, law firms must ensure that AI-generated documents are accurate, reliable, and up-to-date.
If this means associates must manually check the accuracy of legal positions taken within an AI document, so be it. Despite the time it takes to do that research, clients will still be saving money based on the fact that the associate didn’t have to toil over writing the document at issue for hours, days, or weeks.
Additionally, AI tools should be regularly monitored and tested to minimize the risk of errors or biases that could compromise the quality of legal advice or outcomes.
This might include keeping track of any errors discovered within AI content and also ensuring that the firm’s AI provider regularly updates its systems with new cases, texts, statutes, and the like.
These sorts of human oversight protocols (and intervention when necessary) are likely necessary to ensure your firm is consistently complying with the duty of diligence it owes its clients.
Speaking of AI errors, you should never use ChatGPT for tasks that require the AI to provide factual information. If your firm uses ChatGPT, be sure you’re clear on what it does, how to use it responsibly, and the things you should never expect from this type of tool. Always use a dedicated AI legal tool or other specialized program for your most important work.
#3: Competence
In the last quarter century, we’ve seen the ethical rules surrounding a lawyer’s duty of competence evolve.
Originally, the rule required lawyers to practice law competently.
Today, though, most ethical rules also require lawyers to possess a degree of technological competence.
Certainly, the use of AI falls into the latter category if it is a tool your firm decides to utilize.
In order to use AI effectively, lawyers need to have a solid understanding of how AI works, its limitations, and its potential biases. Failing to grasp the underlying principles or blindly relying on AI without comprehending its nuances can result in incorrect or misguided legal advice.
Additionally, as AI gains prominence in the industry, there is a real risk that legal professionals will over-rely on the technology.
While AI can absolutely enhance efficiency and accuracy, it cannot and should not be used to replace a lawyer’s judgment and critical thinking. Indeed, there may be no greater breach of the duty of competence than the failure of a lawyer to apply his or her own critical thinking, training, and expertise to the issue at hand.
#4: Unlicensed Practice of Law
Perhaps unbelievably, AI tools have the ability to analyze legal issues, provide legal advice, and generate legal documents.
The actual practice of law, however, still requires a license and — as always — certain tasks must be performed by qualified attorneys. Over-reliance on AI thus carries the risk that someone is engaging in the unlicensed practice of law (UPL), which is a crime in all states.
The issue begs the question: when machines are generating legal work product, who is actually practicing law?
Is it the lawyer who performs oversight of the AI-generated material, or is it the machine itself?
These are issues the industry will undoubtedly struggle with for decades to come. Since there are no official legal opinions or decisions yet, you must make your own determination about this ethical conundrum.
#5: Confidentiality
AI systems rely heavily on vast amounts of data. Depending on your use of the system, this could include personal information, confidential client data, and work product materials.
Especially in a high-tech environment, maintaining client confidentiality is one of the most sacrosanct duties of a lawyer.
Whether you use AI or not, you must ensure that all tools and platforms have robust security measures in place to protect sensitive information. Good cybersecurity is not negotiable. Be careful about the data you share with an AI tool, and make sure you know what the system does with any data you feed into it.
Additionally, it is critical for firms to be transparent with clients regarding data collection, storage, and use of their private information within an AI system.
If a breach of client confidential information occurs, pointing fingers at AI won’t be of any help. It is the lawyers behind the system who are likely to take the fall.
Deciding how to use AI ethically at your law firm
The legal industry has much to gain from embracing artificial intelligence.
Nonetheless, it is essential for law firms to navigate the ethical challenges that arise from the moment AI becomes a part of their legal tool kits.
Though these ethical concerns are important, they aren’t so scary that you should avoid AI altogether.
In fact, ignoring AI completely can set you up for much more serious problems. You are already working in a world that is heavily influenced by artificial intelligence. Can you spot a deepfake? Do you know the difference between real AI and marketing jargon designed to make products seem more valuable? Would you know it if your colleagues or staff sent you AI-generated information?
By establishing clear guidelines, investing in proper training, and implementing strong safeguards, your firm can effectively leverage AI while upholding your professional and ethical obligations to clients, the justice system, and society at large.
