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By: Michael J. Lehet OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. THIS ARTICLE DISCUSSES HOW LAW FIRM attorneys can get the most out of their knowledge management (KM) department, and it covers...
By: Hilary Gerzhoy , Julienne Pasichow and Grace Wynn HWG LLP THIS ARTICLE DISCUSSES ETHICAL ISSUES LITIGATORS must be aware of when considering using generative artificial intelligence (AI) technology...
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By: Ronald J. Levine HERRICK, FEINSTEIN LLP THIS ARTICLE PROVIDES GUIDANCE FOR LITIGATORS on developing new business and covers topics such as building your presence as a thought leader, marketing, and...
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By: Hilary Gerzhoy, Julienne Pasichow and Grace Wynn HWG LLP
THIS ARTICLE DISCUSSES ETHICAL ISSUES LITIGATORS must be aware of when considering using generative artificial intelligence (AI) technology in their practice and covers topics such as the many ways litigators may use AI and the specific professional ethics rules that apply.
AI represents an exciting opportunity for lawyers to streamline their practices, save their clients money, and provide better quality representation. It is also fraught with ethical risks. For this reason, lawyers should exercise caution in entrusting tasks to AI and, if and when they do, scrutinize the work it produces. The rules of professional responsibility do not require that lawyers shun AI technology—in fact, the rules encourage its use in some circumstances. But it is the role of a lawyer to ensure that AI work is checked and verified, and to exercise their own independent judgment on complex legal matters.
AI programs currently marketed to lawyers claim to be able to perform or assist with nearly every aspect of legal work. One of the most popular uses for AI in the legal profession is for document review. AI can streamline the document review process using programs like Technology-Assisted Review (TAR). TAR analyzes documents that human reviewers have marked responsive or nonresponsive and feeds the reviewers documents of the same type.1 This allows lawyers to accelerate their review. After the AI has been trained to a certain level, lawyers can choose to have TAR finish the job—making its own determinations as to which documents are responsive and unresponsive.
Similar technology can be used to identify key documents, make privilege determinations, and group documents by category. In addition, AI can be used for the following:
ChatGPT, a popular AI chatbot, can perform a variety of legal tasks, including analyzing a legal scenario and providing the available causes of action. In fact, GPT-4, the most recent version of ChatGPT, has such a thorough understanding of legal concepts that it was able to pass the July 2022 bar exam, outperforming 90% of new lawyers taking the exam.3
Attorney Skepticism
The majority of lawyers remain unconvinced as to the benefits of AI. A recent LexisNexis survey found that only 10% of lawyers believe that generative AI tools, like ChatGPT, will have a transformative impact on law practice, and 60% of lawyers have no plans to use the technology at this time.4
The reticence is not born of ignorance: the survey found that 88% of lawyers and law students are aware of the technology, compared to 57% of consumers. Not only are they aware of the technology, but they would also like to use it for:
The gulf between those who want to use AI in their practice but do not have immediate plans to do so can potentially be explained by the cloud of ethical uncertainty surrounding the use of AI.
Rule 1.1 of the Model Rules of Professional Conduct requires that all lawyers provide competent representation to a client.5 One aspect of providing competent representation is possessing the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”6
To date, more than 30 states have adopted a comment to the Model Rules of Professional Conduct that states that “[t]o 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.”7
AI is perhaps the single most relevant technology of our time. It, and related technologies, can help lawyers identify common mistakes like:
As these issues and others can be spotted with the click of a button, lawyers may increasingly find themselves having to defend their refusal to use AI. And as a practical matter, a lawyer who insists on doing all aspects of their work manually may lose out on work in favor of lawyers who can use AI assistance to do the same tasks at a fraction of the cost. Lawyers may therefore find themselves in an increasingly fraught situation, where the ethical rules encourage use of AI, but also impose discipline for the various ways it can be misused.
For additional practical guidance related to AI Oversight Requirements, Confidentiality Concerns, and Duty to Communicate, please follow this link to read the complete article in Practical Guidance.
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AI is a tool with the potential to transform the legal industry by making lawyering more productive and efficient. It also has potential for misuse. By understanding the ethical limitations on the use of AI, lawyers can feel more confident incorporating it into their practices. If a lawyer has questions about their obligations under the rules of professional conduct related to the use of AI or otherwise, they can and should get confidential legal advice to ensure compliance with the rules.19
Hilary Gerzhoy is a partner at HWG LLP and Vice Chair of the firm’s Legal Ethics and Malpractice group. She represents lawyers and firms in disciplinary investigations, prosecutions, and malpractice matters. Hilary counsels lawyers regarding conflicts, advertising, fee disputes, the unauthorized practice of law, partner admissions, and law firm formations and dissolutions to avoid problems before they arise.
Julienne Pasichow is an associate at HWG LLP. Her practice includes civil litigation, government investigations and enforcement actions, immigration, and legal ethics. Julienne received her J.D., from the University of California, Irvine School of Law, and her B.A., Phi Beta Kappa, from Oberlin College.
Grace Wynn is an associate at HWG LLP. She focuses her practice on legal ethics and professional responsibility matters, civil and commercial litigation, and complex business and contract disputes. Grace represents lawyers and firms in disciplinary investigations, prosecutions, and malpractice matters. She also helps lawyers and law firms understand and comply with their legal ethics obligations.
To find this article in Practical Guidance, follow this research path:
RESEARCH PATH: Civil Litigation > General Litigation > Practice Notes
For an overview of current practical guidance on Generative AI, see
> GENERATIVE ARTIFICIAL INTELLIGENCE (AI) RESOURCE KIT
For a look at the impact of artificial intelligence (AI) on legal practice, see
> EVALUATING THE LEGAL ETHICS OF A ChatGPT-AUTHORED MOTION
For an analysis of potential pitfalls for attorneys using AI, including ChatGPT, see
> LITIGATORS SHOULD APPROACH AI TOOLS WITH CAUTION
For a discussion of how the 2015 amendments to the Federal Rules of Evidence impact e-discovery, see
> E-DISCOVERY BEST PRACTICES (FEDERAL)
For information on the use of predictive coding in federal litigation, see
> PREDICTIVE CODING FUNDAMENTALS (FEDERAL)
For an examination of technology-assisted review of electronically stored information, see
> TECHNOLOGY-ASSISTED REVIEW: OVERVIEW (FEDERAL)
For a summary of whether or not each of the 50 states and the District of Columbia has formally adopted Comment 8 to Model Rule 1.1 of the Model Rules of Professional Conduct concerning litigation technology competence, see
> LITIGATION TECHNOLOGY COMPETENCE STATE LAW SURVEY
1. See Cat Casey, How to Use Human-Centered AI in Legal Document Review, Reveal, (Feb. 2, 2023). 2. See Steve Lohr, A.I. Is Coming for Lawyers, Again. N. Y. Times, 10 Apr. 2023. 3. Debra Cassens Weiss, Latest version of ChatGPT aces bar exam with score nearing 90th percentile. ABA J., Mar. 15, 2023. 4. Rachel E., Shock survey reveals most lawyers shunning game-changing AI technology. JD J., Mar. 27, 2023. 5. MODEL RULES OF PROF’L CONDUCT, R. 1.1 (2023). 6. Id. 7. MODEL R. 1.1 cmt.