Artificial Intelligence & The Legal Field

Posted on by Adam Bean

Introduction

As the musical duo Zager & Evans once predicted, “In the year 5555, your arms hangin’ limp at your sides, your legs got nothin’ to do; some machine’s doin’ that for you.”1 Once relegated to such science fiction music, claims like these have started to gain traction among scholars in the world of artificial intelligence. Indeed these scholars hypothesize that, in the year 2063, artificial intelligence may “outperform[] humans in all tasks . . . .”2 Researchers Michael Osborne and Carl Frey have attempted to quantify this prediction in relation to the stability of certain job markets.3 Their research showed that “35% of . . . jobs [faced a] . . . high risk of . . . [replacement by AI] over the following 20 years.”4 The legal field, though not immune from this risk, fared slightly better: “Legal Professionals” faced only a 3% risk of losing their jobs to AI.5

AI is, however, progressing rapidly, as countries and companies continue to invest in its development at record rates.6 As such, the longevity of Osborne and Frey’s 3% estimate has fallen into question.

It is against such backdrop that this blog post will examine the impact artificial intelligence may have on the future of the legal field. First, this blog post will provide a brief overview of artificial intelligence. Next, this blog post will discuss the impact artificial intelligence may have on the law firm. Finally, this blog post will canvas the impact artificial intelligence may have on a lawyer’s ethical obligations.

What Is Artificial Intelligence?

Given its exceptionally complex nature, there is no universally accepted definition of artificial intelligence. This blog post shall thusly adopt a definition proposed by former President Obama’s National Science and Technology Council Committee on Technology: “a system capable of rationally solving complex problems or taking appropriate actions to achieve its goals in whatever real world circumstances it encounters.”7 There are two types of artificial intelligence, narrow and general.

Narrow artificial intelligence is “goal-oriented [and] designed to perform singular tasks.”8 As technology commentator Mike Bullock puts it, Narrow AI is “. . . like a Phillips screwdriver, it’s good for turning screws with a Phillips head . . . [Though] [y]ou can stick a bunch of [Narrow] AIs together [and] make a Swiss [A]rmy [K]nife . . . as soon as you come across a task that [the] knife can’t handle, you’re stuck.”9 Apple’s virtual assistant “Siri” is a common example of a “Swiss Army Knife” narrow artificial intelligence. Indeed, Siri is able to “[1] process . . . human language, [2] enter it into a search engine (Google), and [3] return to us with results.”10 While impressive, Siri is not truly simulating human intelligence. Instead, like all narrow artificial intelligence, Siri is simply performing individual tasks within its predetermined set of capabilities, thereby producing the appearance of human intelligence.

In contrast, general artificial intelligence refers to a system that is “able to learn, plan, reason, communicate in natural language, and integrate [and apply] all of these skills . . . to any task.”11 In other words, general artificial intelligence is a true, machine driven simulation of human intelligence, not just the mere appearance of it. As a result, general artificial intelligence, unlike narrow artificial intelligence, does not yet exist. Indeed, the closest scientists have come to creating general artificial intelligence was in 2013 when the Fujitsu supercomputer, “harness[ing] the power of 82,944 processors” produced “one second of [human grade] neuronal . . . activity” after “40 minutes” of processing.12

Disruptive Innovation: Artificial Intelligence And The Law Firm

According to Harvard Professor Clayton Christensen, “the practice of law is becoming increasingly susceptible to [artificial intelligence].”13 Actors in the legal field who choose to ignore this development may fall victim to “disruptive innovation.”14 Disruptive innovation describes the process of how “new entrants [to a market] overtake successful existing companies.”15 Disruptive innovation functions as follows:

Premise 1) When large successful companies seek higher profits, they move up market; Premise 2) When large successful companies move upmarket, they ignore lower market clients;

Premise 3) When large successful companies ignore lower market clients, new entrants silently gain footholds in the marketplace;

Premise 4) New entrants, facing no competition from large companies, silently climb the market ladder and improve their services;

Conclusion) These new entrants displace the large successful companies with their newer and superior services.16

Though law firms dominate the legal field, they have been remarkably unwilling to embrace change.17 As Altman Weil’s 2017 Law Firms in Transition Survey put it, “[a] reluctance to change is a significant and ongoing challenge in most firms.”18 This reluctance has manifested itself in a low rate of AI adoption. Of the “386 [law] firms” to respond to Altman Weil’s survey, “7.5%” reported making use of “legal AI tools,” only “29% are beginning to explore [artificial intelligence],” and “64% [have] not [done] anything” to adopt or even consider AI.19 Even the most “tech-savvy” law firms like Cooley admitted to a lack of interest in “the use of technology [to] deliver[] client service[s].”20

Despite their hesitation, most law firms recognize the threat artificial intelligence poses to their businesses. According to Altman Weil, 51.7% of law firms believe artificial intelligence poses a “potential threat” to their business, and 20.2% of law firms report having actually lost business to such “technology tools.”21

Rather than focusing on adopting AI to recover such actual and potential business losses, law firms have chosen to ignore it and, by implication, those embracing it.22 In its place, law firms have continued to focused on “refining their services to meet the growing complexity of their [high profile] clients’ needs . . . .”23 These high profile clients demand “fairly customized and not easily repeatable tasks.”24 To accomplish these tasks, law firms retain “top legal talent”25  which, naturally, increases costs. Consequentially, law firms now provide legal services “at the top of the [legal service] pyramid”26 and have “pric[ed] out . . . 80% of Americans who need legal” assistance.27

By focusing their efforts at the top of the legal market, law firms have, as predicted by disruptive innovation theory, begun to face fierce competition. In point of fact, “40.1%” of law firms reported losing business at the hands of legal actors making use of “technology tools” like artificial intelligence.28 Thus, if law firms do not begin adopting artificial intelligence, challengers like alternative legal service providers—who have widely embraced artificial intelligence—may gain footholds into the market and erode the law firm’s grip on the legal market.

Artificial Intelligence And A Lawyer’s Ethical Obligations

Lawyers currently grapple with a myriad of ethical obligations; according to the American Bar Association, there are more than 50 model rules all lawyers must adhere to.29 In the future, ethics and disciplinary lawyer Megan Zavieh predicts that lawyers will have to “navigat[e] murky ethical areas where the law and [ethical] rules haven’t caught up [to] . . . technology.”30 A lawyer’s ethical obligations of “competence,” and “client confidentiality and privilege”31 serve as prime examples of how murky these waters may become.

Model Rule 1.1 states that “[a] lawyer shall provide competent representation to a client [which] . . .  requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for [such] representation.”32 In addition, comment 8 to Rule 1.1 states that “a lawyer should keep abreast of changes in the law and its practice, including . . . relevant technology.”33 Thus a future layer may have to make use of AI if he or she wishes to remain in compliance with Rule 1.1.34

The use of AI, however, is not sufficient to lift the ethical fog. Indeed, if a future lawyer uses AI to remain compliant with Rule 1.1, to what extent must he or she “understand the capabilities and limitations of the [AI] tools”?35 Moreover, how can we expect lawyers to fully understand AI given the “black box” problem: when “submit[ting] a query to an AI . . . it goes into a ‘black box,’ and the AI . . . provides an answer” without showing its work.36 A possible solution to these questions is the imposition of a basic competency standard: does the lawyer possess a “basic understanding of how the [AI] tools they utilize generally work[?]”37 This standard eases the extent to which future lawyers, “[who] are not computer scientists or technologists” must understand AI, and mitigates the black box problem.38 Thus, future lawyers may have to both use and understand—at a basic level—AI to remain compliant with their ethical obligation of competence.

Model Rule 1.6 states, “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, [or] the disclosure is impliedly authorized . . . to carry out the representation.”39

Additionally, Rule 1.6 requires “[a] lawyer [to take] . . . reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”40 As future lawyers implement AI into their practices, Hogan Lovells partner Chris Mammen foresees issues with inadvertent disclosures. Mammen notes, “if [a client’s confidential information is] being handled by a vendor’s server somewhere [beyond the law firm firewall] . . . how sure are you that . . . confidential or privileged information is . . . adequately protected?”41 Thus, to remain complaint with Rule 1.6, future lawyers may have to engage in regular communications with their AI vendors. Additionally, future lawyers may do what they do best, and perhaps build protections into contracts with AI vendors to ensure the confidentiality of client information. Put simply, a future lawyer may have to take extra precaution to protect his or her client’s confidential information.

Summation

In summation, this blog examined the impact of artificial intelligence on the legal profession. It began by providing a brief overview of artificial intelligence and its two forms: narrow and general. Next, this blog shifted its focus towards artificial intelligence’s interaction with today’s legal field, probing the potential it has to submit law firms to disruptive innovation. Last, this blog discussed the ways in which artificial may impact the legal field of tomorrow, paying special attention to future lawyer’s ethical obligations.

So, in the year 2525, will your arms be limp by your sides? If you are a lawyer, the answer, as always, is, “it depends.”

  1. Zager & Evans, In the Year 2525, on 2525 (Exordium & Terminus) (RCA Victor 1969). ↩

  2. Katja Grace et al., Viewpoint: When Will AI Exceed Human Performance? Evidence from AI Experts, 62 J. Artificial Intelligence Res. 729, 729 (2018), https://jair.org/index.php/jair/article/view/11222/26431. ↩

  3. Stylianou et al., Will a Robot Take Your Job?, BBC (Sept. 11, 2015), https://www.bbc.com/news/technology-34066941. ↩

  4. Id. ↩

  5. Id. (search “I am a . . .” field for “legal professional (other)” to find out automation risk). ↩

  6. See Nick Statt, The AI Boom Is Happening All Over the World, and It’s Accelerating Quickly, Verge (Dec. 12, 2018, 11:00 AM), https://www.theverge.com/2018/12/12/18136929/artificial-intelligence-ai-index-report-2018-machine-learning-global-progress-research. ↩

  7. Exec. Off. of The President, Nat’l Sci. and Tech. Council Comm. on Tech., Preparing for the Future of Artificial Intelligence 6 (2016) https://obamawhitehouse.archives.gov/sites/default/files/whitehouse_files/microsites/ostp/NSTC/preparing_for_the_future_of_ai.pdf. ↩

  8. Brodie O’Carroll, Artificial Intelligence. What Are the 3 Types of AI? A Guide to Narrow, General, and Super Artificial Intelligence, Codebots (Feb. 11, 2020), https://codebots.com/artificial-intelligence/the-3-types-of-ai-is-the-third-even-possible. ↩

  9. Mike Bullock, Artificial General Intelligence in Plain English, Towards Data Sci. (Oct. 10, 2019), https://towardsdatascience.com/artificial-general-intelligence-in-plain-english-e8f6e9a56555. ↩

  10. Tannya D. Jajal, Distinguishing between Narrow AI, General AI and Super AI, Medium (May 21, 2018), https://medium.com/mapping-out-2050/distinguishing-between-narrow-ai-general-ai-and-super-ai-a4bc44172e22. ↩

  11. Bullock, supra note 9. ↩

  12. Tim Hornyak, Fujitsu Supercomputer Simulates 1 Second of Brain Activity, CNET (Aug. 5, 2013, 2:22 PM), https://www.cnet.com/news/fujitsu-supercomputer-simulates-1-second-of-brain-activity/. ↩

  13. Disruptive Innovation In Legal Services, Harv. Ctr. Legal Prof. (2015), https://thepractice.law.harvard.edu/article/disruptive-innovation/ (scroll down to end of the article and click “single page”). ↩

  14. Id. ↩

  15. Id. ↩

  16. Jimoh Ovbiagele, Disruptive Innovation in the Legal Industry, Law Practice Today (Jan. 13, 2017), https://www.lawpracticetoday.org/article/disruptive-innovation-legal-industry/. ↩

  17. Thomas S. Clay & Eric A. Seeger, 2017 Law Firms in Transition i, vii (2017), http://www.altmanweil.com/dir_docs/resource/90D6291D-AB28-4DFD-AC15-DBDEA6C31BE9_document.pdf. ↩

  18. Id. at vii. ↩

  19. Clay & Seeger, supra note 17, at i, vii. ↩

  20. Artificial Intelligence and Lawyers, Chambers Associate, https://www.chambers-associate.com/practice-areas/technology/artificial-intelligence-and-lawyers (last visited Mar. 10, 2021). ↩

  21. Clay & Seeger, supra note 17, at 4. ↩

  22. Clay & Seeger, supra note 17, at vii. ↩

  23. Ovbiagele, supra note 16. ↩

  24. Zach Warren, Law Firms and Outside Legal Service Providers Have Begun to ‘Meet in the Middle’, Law.com (Aug. 5, 2020, 5:00 AM), https://www.law.com/2020/08/05/law-firms-and-outside-legal-service-providers-have-begun-to-meet-in-the-middle/. ↩

  25. Id. ↩

  26. Id. ↩

  27. Ovbiagele, supra note 16. ↩

  28. Clay & Seeger, supra note 17, at 4. ↩

  29. See American Bar Association, Model Rules Of Professional Conduct-Table of Contents, A.B.A., https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/ (last visited Mar. 10, 2021). ↩

  30. David Lat, The Ethical Implications of Artificial Intelligence, Above The Law,  https://abovethelaw.com/law2020/the-ethical-implications-of-artificial-intelligence/ (last visited Mar. 27, 2021). ↩

  31. Id. ↩

  32. Model Rules of Pro. Conduct r. 1.1 (Am. Bar Ass’n 2020). ↩

  33. Model Rules of Prof’l Conduct r. 1.1 cmt. (Am. Bar Ass’n 2020). ↩

  34. See generally Neil Sahota, Will A.I. Put Lawyers Out Of Business?, Forbes (Feb. 9, 2019, 10:43 PM),  https://www.forbes.com/sites/cognitiveworld/2019/02/09/will-a-i-put-lawyers-out-of-business/?sh=1a81939c31f0 (positing that a lawyer’s failure to use AI may “be analogous to a lawyer in the late twentieth century still doing everything by hand.”). ↩

  35. Lat, supra note 30. ↩

  36. Lat, supra note 30. ↩

  37. Lat, supra note 30. ↩

  38. Lat, supra note 30. ↩

  39. Model Rules of Pro. Conduct r. 1.6 (Am. Bar Ass’n 2020). ↩

  40. Id. ↩

  41. Lat, supra note 30 ↩

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