In 2018, lawyers will shift their concern from ethical risks of using AI in legal practice, to the risks of not using it

by | January 18, 2018 12:00 am

In 2018, lawyers will shift their concern from the ethical risks of using Artificial Intelligence (AI) in legal practice, to the risks of not using it.

AI is not a single, all-encompassing program that will one day be “switched on.” It is a set of related technologies that are already in use in legal organizations today, in applications such as legal research, contract analysis and due diligence, business development, litigation strategy, and e-discovery.

To date, 28 U.S. states have adopted a duty of technology competence. Specifically, they have adopted some form of the language in Comment 8 of ABA Model Rule 1.1 pertaining to technology:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

At some point, it will become ethically irresponsible for a lawyer to be unaware of “relevant technology” and its everyday application for their practice. The fact that many legal professionals don’t understand the extent to which these technologies are already in use across the industry is itself a cause for ethical concern.

Equally, legal professionals should be concerned about the ethical implications of the application of AI technologies to their practice, including:

Duties of supervision and independent judgment when using tools that help suggest answers to legal questions; Confidentiality of hosted data used in AI applications and the risk of data breaches; Risks related to confidentiality, privilege, and commingling of multiple clients’ data when using AI to analyze law firm billing data; As these concerns are addressed, there will be a gradual recognition of the ethical duty to use and apply appropriate technology, and this will be reflected in other trends coming to the legal profession.

David Curle is Thomson Reuters’ Director of Market Intelligence, Legal.