Dialling in Legal Ethics for Artificial Intelligence, Smart Phones, and Real Time Lawyers

By Jan L. Jacobowitz and Justin Ortiz*

“We’re working on having lawyers teach the computer to think like a lawyer. That would be a huge step for humanity . . . . With legal tech, there will be new jobs, and we can embrace a very happy future in the law. This is a new frontier.” – Andrew Arruda

“There is no threshold that makes us greater than the sum of our parts, no inflection point at which we become fully alive. We can’t define consciousness because consciousness does not exist. Humans fancy that there’s something special about the way we perceive the world, and yet we live in loops as tight and as closed as the [AI] hosts do, seldom questioning our choices, content, for the most part, to be told what to do next.” – Dr. Robert Ford, Westworld2

“I am very honored and proud of this unique distinction. This is historical to be the first robot in the world to be recognized with a citizenship.” – Sophia, the first robot to be granted citizenship in Saudi Arabia

Abstract

If we ask six-year old Siri to create a guest list for a party to celebrate the tenth anniversary of the iPhone, Siri might include invites (or e-vites) for Alexa, Bixby, Cortana, and Google’s Assistant. Whether the guests would be able to “mingle” with one another is unclear, but human invitees could communicate with each of Siri’s “smart” technology guests. Smart devices and Artificial Intelligence (“AI”) programs have altered the way we live — both in our personal and professional lives. Through these platforms, we can communicate simultaneously with a large number of people located at multiple locations throughout the world. We can access both our personal and business emails and files from almost anywhere on the planet. Free public WiFi hot-spots are as numerous as the apps that are available for our smartphones. We can communicate with technological assistants that perform our tasks and answer our questions. In fact, technology makes it possible for us to conveniently use the same device for personal and professional purposes. But the increased sophistication and convenience of these technologies have also created vulnerabilities for users who fail to learn how the technology functions and to employ reasonable precautions. These vulnerabilities become especially problematic in the practice of law.

The legal community has confronted the challenge of adapting to technological innovation throughout its history (albeit, generally somewhat behind the technological curve), but artificial intelligence and its use in the legal profession is relatively new. While many lawyers use smartphones and virtual assistants, the arrival of new “smart machines” have baffled many in the legal profession. ROSS, sometimes referred to as the “robot’ lawyer, was merely a glint in his developers’ eye when Apple gave birth to the iPhone. Today, ROSS Intelligence offers AI driven research to legal practitioners. A slew of other AI vendors also provide attorneys with legal support services including legal research, contract review, litigation strategy, litigation funding decisions, e-discovery, and jury selection. The use of services provided by these vendors are slowly gaining acceptance in the legal community. AI promises increased efficiencies, but strikes fear into those who worry about robot lawyers replacing humans. In fact, automated “bots” like DoNotPay, a bot developed by a British teenager that has “represented” thousands of individuals who have successfully contested their traffic tickets, demonstrate that some of these fears are not unfounded.

Regardless of whether AI is embraced or feared, the use of AI implicates the Rules of Professional Conduct and a lawyer’s corresponding ethical duties to his client. Whether a lawyer’s use of AI will become tantamount to competent representation remains to be seen, but there is no doubt that the current use of AI has already raised the specter of legal ethics landmines, with issues such as client consent, confidentiality, and supervision already in play. Moreover, a debate has ensued as to whether the use of an AI machine or ‘bot’ constitutes the unauthorized practice of law.

This article explores the history of AI and the advantages and potential dangers of using AI to assist with legal research, administrative functions, contract drafting, case evaluation, and litigation strategy. This article also provides an overview of security vulnerabilities attorneys should be aware of and the precautions that they should employ when using their smartphones (in both their personal and professional lives) in order to adequately protect confidential information. Finally, this article concludes that lawyers who fail to explore the ethical use of AI in their practices may find themselves at a professional disadvantage and in dire ethical straits.

The first part of this article defines the brave new world of AI and how it both, directly and indirectly, impacts the practice of law. Part two explores legal ethics considerations when selecting and using AI vendors and virtual assistants. Part three outlines technology risks and potential solutions for lawyers who seek to embrace smartphone technology while complying with legal ethics obligations. The article concludes with an optimistic eye toward the future of the legal profession.

Original source: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3097985