• Jan L. Jacobowitz

Machines that Lawyer? Artificial Intelligence and Real Lawyers

The legal community has confronted the challenge of adapting to technological innovation throughout its history (albeit, generally somewhat behind the technological curve); artificial intelligence (“AI”) represents the most recent “invasion” of technology into the practice of law. Most thought leaders describe AI as a machine that can “learn” (think Watson’s famous jeopardy triumph). However, scientists, philosophers, futurists, and others disagree as to the precise definitions of intelligence, consciousness, the speed at which technology may deliver super intelligent machines, and whether machines will be the next species to rule the planet. Max Tegmark refers to the artificial intelligence debate as “the most important conversation of our lifetime.”

This conversation necessarily implicates the legal profession because of the legal system’s pervasive role in society. Among the nuanced questions raised are whether machines should have legal rights and liabilities, whether an AI program can commit a crime, whether “robo-judges” would create greater equality in society, and whether AI could more efficiently create and enact legislation. While these issues are no doubt on the horizon, today’s lawyers must first confront the issues arising as artificial intelligence’s “invasion” begins.

In fact, ROSSIntelligence has recently landed “on the shores” of the legal profession to offer natural language legal research and memoranda at speeds unmatched by young lawyers. AI vendors are also available to assist in drafting patent applications, perform due diligence, and analyze contracts.(e.g. Kira Systems) Other AI systems offer assistance with case strategy. Lex Machina spots trends in judge’s rulings, identifies legal strategies of opposing counsel and notes winning arguments. One AI company, aptly named Premonition, boasts, “We Know Which Lawyers, Win Which Cases, In Front of Which Judges.” In fact, litigation funding companies are looking to AI before they “bet” on the outcome of a lawsuit: Silicon Valley’s Legalist invests in a case after its algorithm concludes that a lawyer has high odds of winning the lawsuit.

The legal profession’s nascent use of AI raises a few threshold questions: Will there be a profession-wide mandate for lawyers to employ AI in order to remain competent? In other words, if AI increases efficiency and enhances effectiveness, does a lawyer risk being subjected to a disciplinary complaint or a malpractice claim for failing to use an applicable AI program? If an AI system works more efficiently and thereby reduces a client’s bill, is a lawyer who fails to employ AI charging unreasonable fees?

Sound preposterous? It was not that long ago that some suggested that a lawyer’s failure to consider social media in preparing a case would be deemed incompetence. The suggestion was initially met with skepticism, but today, social media has been codified as a component of competence in various ethics opinions and court cases.

Regardless of whether the use of AI becomes a fundamental component of competence, lawyers today who retain AI vendors must do so competently. In other words, a lawyer must investigate an AI company and generally understand enough about its AI technology to explain it to a client; obtain a client’s consent; ensure that a client’s information remains confidential; and review an AI vendor’s work product.

Of course, a lawyer’s responsibilities will vary somewhat based on context. While lawyers do not necessarily need to understand the technical underpinnings of AI algorithms, they should understand basic technology of their own smart devices so that they may protect the confidential data that resides on the devices. A lawyer who is asking google assistant to “talk” to him about the research for a client’s case or instructing Siri to email a client should understand both the privacy concerns and the encryption options. Of course, that is a machine lawyering discussion for another day…

This blog post was adapted from Jan L. Jacobowitz & Justin Ortiz, Happy Birthday Siri! Dialing in Legal Ethics for Artificial Intelligence, Smart Phones, and Real Time Lawyers: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3097985

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