Skynet is not and may never be self-aware, but machines are al-ready doing legal research, drafting legal documents, negotiating disputes such as traffic tickets and divorce schedules, and even drafting patent applications. Machines learn from us, and each other, to augment the ability of lawyers to represent clients—and even to replace lawyers completely. While it also threatens lawyers’ jobs, the exponential increase in the capacity of machines to transmit, store, and process data presents the opportunity for lawyers to use these services to provide better, cheaper, or faster legal representation to clients. By way of familiar example, instead of determining whether a precedential opinion remains “good law” by manually going through multiple books – “Shepardizing a case” as an older lawyer would put it –lawyers can use on-line legal services to instantly learn, not just whether an earlier decision has been limited or overruled, but the depth of analysis given to the issue by a later court opinion.
Because technology may be able to do some tasks better, or at a lower cost, or both, lawyers should use technology when it will, considering the risks, benefit clients. That obligation requires lawyers to stay “keep abreast of changes in. . . practice, including the benefits and risk associated with relevant technology. . . .” Assessing the benefits and risks of a particular technology obviously requires due diligence into the practical and legal risks of the technology, and comparing that to the benefits it brings to a representation. That assessment requires applying existing ethical rules in a process that can best be analyzed as comprising two stages.
The first step requires determining whether the technology does what it is supposed to do in a reasonably competent manner. For example, just as a lawyer could not use a paralegal to use a form to create the first draft of a contract for a client if the paralegal’s work was known to be unreliable or unreasonably expensive, a lawyer can-not use an automated contract drafting service with the same short-comings. The first step, in other words, requires reasonable efforts by the lawyer to determine the competency of the service. If the service does not provide competent assistance, the lawyer obviously cannot use it.
The second step requires determining whether a competent service can be used while complying with the ethical obligations of the lawyer, beyond competency. Just as a lawyer must ensure that non-lawyer employees and agents maintain the confidentiality of client information consistent with the lawyer’s ethical obligations, he must do so with all services provided by third parties, including automated services. Likewise, lawyers must ensure non-lawyer assistants – even those who are independent contractors hired for a particular matter, and not firm employees – must not have conflicts of interest or violations of other ethical rules.
This article focuses on the second step in the due diligence process. While it addresses the question of competency, it focuses more on the further steps a lawyer must take to ensure that the use of the service as part of the representation of a client is consistent with the lawyer’s other ethical obligations. While it is important to emphasize that competency requires that the lawyer must be able to assess whether the work product is comparable to what a human would produce, competency is of course a fact-depending inquiry: whether a will is competently drafted turns on the standard of care of a practitioner who drafts wills.
This article focuses more on how a lawyer can determine whether it is ethical to use a competent service that augments document drafting. While addressing how ethical concerns arise across typical practice areas, it highlights a practice area where the risks for violations may be particularly acute because the need for confidentiality is high, and the potential for undetected conflicts of interest is great: patent practice. This article identifies the issues, describes the potential risks, and explains what protections a lawyer should look for in the terms of service of an automated legal document drafting site to ensure ethical representation.
David Hricik, Asya-Lorrene S. Morgan & Kyle H. Williams, Ethics of Using Artificial Intelligence to Augment Drafting Legal Documents, 4 Tex. A&M J. Prop. L. 465 (2018).