The Role of AI in the Ethical Practice of Law

A decade ago, the thought of a robo-lawyer would have seemed unfathomable. While advancements in AI may seem incredible, they will be commonplace very soon. Lawyers will find ways to use artificial intelligence (AI) to augment their practice, making them more productive and better able to serve their clients.

According to the research paper Legal Ethics in the Use of Artificial Intelligence, more than ever, lawyers are using AI to enhance their legal services. 

"Without a doubt, AI promises to transform the practice of law fundamentally. AI holds out the promise of freeing lawyers from mundane tasks and allowing them to devote more of their time to counselling clients, which, after all, is the core service of what lawyers do. Lawyers should not fear AI but rather embrace it. Professional ethics may require them to do so."

The use of artificial intelligence raises complicated questions implicating professional ethics. Lawyers must be aware of the issues involved in AI. At the heart of the matter is a lawyer's duty to provide competent representation to a client. Artificial intelligence has much to offer, but ethical compliance is essential. 

AI in the Law Firm

AI can be a vital instrument in any law firm's success. On the surface, the process is simple enough. Leverage algorithms that enable a machine to recognize and understand unstructured data and zero in on the most relevant information. By removing a mundane, time-consuming task from the process, lawyers can concentrate on higher-value work. The resulting shift in workflow allows firms to deliver services faster, economically and spend more time focusing on their clients.

"One way that we lawyers fall short as a profession is in our human interaction," states ethics and disciplinary lawyer Megan Zavieh in her interview with Above the Law. "Not enough lawyers are caring enough about their clients and their problems. As a result, we have not just a business-development problem but also an ethics problem: we need to be invested enough in our clients to put forth the effort that's required to see their matters through successfully."

As the Harvard Journal of Law & Technology (JOLT) reports, AI will soon "be taking over (or at least affecting) a significant amount of work now done by lawyers."

AI adoption and responsibility 

The extent to which AI will impact our lives remains to be seen. Of course, artificial intelligence has countless applications outside the legal profession. Forbes reports that the acceptance of AI and cognitive technologies continues unabated with rapid adoption. "However, with this growth of adoption comes strain as existing regulation and laws struggle to deal with emerging challenges. As a result, governments around the world are moving quickly to ensure that existing laws, regulations, and legal constructs remain relevant in the face of technological change and can deal with new, emerging challenges posed by AI," according to Forbes.

It takes time for the law to catch up with the reality created by new technology, if only because it is difficult to predict how it might be used or, ultimately, abused. Indeed, there has been much debate about the use of facial recognition tools and the risk of violating fundamental human rights. Not surprisingly, there have been calls for more oversight, accountability and codes of conduct when it comes to the use of AI algorithms.

According to ZDNet, the issue of "ethical AI" has become an increasingly scrutinized topic. Fanny Hidvégi, the European policy manager at digital rights organization Access Now, says ethics are open to interpretation. 

"In ethics, the moral impetus comes from the inside of an organization," she tells ZDNet. "It's about their internal commitment to that framework." 

Hidvégi argues that the regulation of AI applications is an issue of human rights, not ethics and shouldn't be left to each organization to draft their ethical guidelines.

The challenge for the legal profession

When using AI tools, lawyers still have the same duties of supervision and independent judgment. David Curle, Director of the Technology and Innovation Platform at the Legal Executive Institute of Thomson Reuters, told Above the Law that AI's ethical issues are not that different from the problems lawyers have always faced before. "If lawyers are using tools that might suggest answers to legal questions, they need to understand the capabilities and limitations of the tools, and they must consider the risks and benefits of those answers in the context of the specific case they are working on." 

In the same report, Zavieh said lawyers are dealing with issues where the rules have yet to catch up with the technology. "We're trying to apply rules that were written based on certain ways of practicing law and now trying to apply them to very different ways of working."

According to the American Bar Association (ABA), new developments utilized by the legal profession require "an ongoing assessment of how a lawyer's ethical obligations intersect with the use of technology."  The association states. 

Ethical considerations

The study Legal Ethics in the Use of Artificial Intelligence found that the American Bar Association (ABA) has yet to publish formal ethics on AI use by lawyers but noted several obligations apply. The authors of the paper suggest four duties to consider:

• Duty of Competence: The ABA mandates that a lawyer must provide competent representation to clients. The rule states, "[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." A lawyer has a duty to identify the technology needed to effectively represent the client and determine if its use will improve service to the client.
• Duty to Communicate: Lawyers are required by the ABA to "reasonably consult with the client about the means by which the client's objectives are to be accomplished." This duty includes discussing the decision to use AI, including its risk and limitations. Informed consent should be obtained before using artificial intelligence.
• Duty of Confidentiality: Lawyers owe their clients a general duty of confidentiality under ABA provisions. A lawyer is required to "make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client." Artificial intelligence tools may necessitate client confidences to be shared with others, so lawyers must take precautions to ensure that information is appropriately safeguarded. Again, communication with the client is necessary.
• Duty to Supervise: The ABA ethically obligates lawyers to supervise both lawyers and nonlawyers who assist lawyers while providing legal services to ensure that their conduct complies with Professional Conduct Rules. Lawyers must supervise AI's work and understand the technology well enough to ensure compliance with their ethical duties.

The authors of the paper say some tasks should not be left to artificial intelligence, and lawyers would be well advised to consider its limits.

The problem of bias

According to the Legal Ethics in the Use of Artificial Intelligence study, there is another consideration in a lawyer's use of AI, which is the problem of bias.  

"For all the advantages that AI offers, there is also a genuine concern that AI technology may reflect its developers' and trainers' biases and prejudices, which in turn may lead to skewed results." 

Rt. Hon. Jeremy Wright, the United Kingdom's Digital Secretary, echoed that thought in a ZDNet report. "The algorithms and structures that govern AI will only be effective if they do not reflect the subconscious biases of the programmers who create them."

The Harvard Business Review reported that human biases are well-documented. "Over the past few years, society has started to wrestle with just how much these human biases can make their way into artificial intelligence systems – with harmful results," according to the Review. "At a time when many companies are looking to deploy AI systems across their operations, being acutely aware of those risks and working to reduce them is an urgent priority. 

It comes down to who is using AI and how. Ultimately, it demands an adherence to sound moral and ethical judgment.

The code of professional conduct

The Canadian Bar Association (CBA) reminds lawyers that their “ethical and legal obligations are governed by the code of professional conduct.”

“Given the range of ethical questions raised by using technology in a law practice, and the diversity among law practices, we do not claim to offer a comprehensive resource or to be prescriptive. Our goal is to help you spot potential ethical issues related to the use of technology and to direct you to resources to determine best practices and solutions that are appropriate for your situation,” according to the CBA report Legal Ethics in a Digital World.

With that in mind, the association suggests lawyers utilizing AI consider the following security questions:

• Are your physical, organizational and technological security measures adequate? 
• Is your computer equipment physically secured using cables or other measures? 
• Are you using firewalls and intrusion detection software appropriately? 
• Are you using anti-malware software appropriately? 
• Are there firm policies in place regarding technology use? 
• Are firm lawyers and staff given adequate technology training?
• Do you have measures in place to ensure data integrity? 
• Are you meeting your legal and professional obligations when using electronic signatures? 
• Is your data backed-up? 
• Have you assessed your current practices and policies for potential barriers to access and taken steps to remove existing barriers? 
• Are your passwords, other access restrictions and authentication protocols sufficient? 
• Do you use encryption where appropriate? 
• Have you taken adequate steps to safeguard client data when travelling internationally? 
• When discarding equipment, do you take appropriate measures to guard against unauthorized disclosure of client information?
• Have you taken adequate steps to guard against the inadvertent disclosure of metadata? 
• Is your use of foreign cloud computing resources interfering with client confidentiality? 
• Is there an incident response plan in place in your firm? 

Indeed, as the field of artificial intelligence evolves, it will be up to each lawyer to decide how it fits in with their practice, both morally and ethically.

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