Throughout history new technology has transformed society while disrupting professions, businesses and education. Just in our lifetimes we have witnessed many dramatic technology driven changes to law practice and legal education.
To mention a few: Online searchable legal materials have essentially overtaken reliance on “in the stacks” volumes of case reporters, statutes, books, and journals, not to mention the anxiety inducing task of reading heavily used, dog-eared paperback copies of Shepard’s Citator to check the status of pertinent judicial decisions and find related cases. No new lawyer or law student mourns the demise of assignments to manually “Shepardize” cited cases.
This important but mind numbing, eye blurring task which typically involved checking multiple sequential editions of the compendia of judicial decisions and overcoming the stomach-churning concern that a critical update about a key case might have been overlooked or perhaps contained in some of the Shepard’s volumes you needed that, as inevitably, frequently happened, were missing from the law library. Then too, E-discovery and forensic investigations, which used to involve physically handling enormous amounts of tangible paper records — often stored in huge warehouses, back-office storage rooms, or far-flung storage cabinets — are now dominated by digital networked computer operations and communications which often employ AI.
Even so lawyers and law schools have been late adaptors of new technology, often for good reasons. We like to see evidence based on experience which takes time to collect before deciding whether a change is worthwhile or just a passing fad. And we value the probative value of give and take argument before making decisions which also is slow to develop. Lawyers also are comfortable with precedent, wary of unintended consequences of even well-intentioned change, and sensitive to the unfairness of changes to those who have relied on the status quo, as well as to those who lack the means or know how to adapt to new ways of doing things.
In a world where paradoxically the only constant is continuously accelerating change, the advent of cascading new AI applications such as, for example, the advent of Chat Bots such as GPT-3 and GPT-4 to generate research and writing, and other algorithmic software programming that responds to and also can imitate real visual images and sounds – as in the latest Top Gun film and Beatles remix reconstituting actual voices of now voiceless or deceased humans – all this will require lawyers to adapt and gain competencies faster than they have been historically accustomed to doing.
The truth is that the AI horse is already out of the barn and the only question is how best to ride it to get to where you need to go without falling off in a ditch. We lawyers have an ongoing need to learn and keep learning a lot about the rapidly evolving future of AI in our lives and livelihood. This includes:
- Acquiring at least a basic understanding of AI and to be informed of new developments that relate to law and justice. While there are not yet specific AI professional rules, the ABA Model Rules (Rule 1.1 and Comment 8) and the model rules of 30 states, including Florida (Maintaining Competence, FL Bar Rule 4-11), have added to their professional competency rules a provision that lawyers must maintain the requisite knowledge and keep on top of changes in law and practice, including the benefits and risks of new technology.
- Think through how other professional responsibilities apply to the use of AI such as the duties of diligence and supervision.
- Be aware of new and evolving professional and legal rules applicable to the use of AI in practice such as the trend toward requiring disclosure by lawyers when they use AI applications in public, judicial, and client facing communications.
- Understand the need and how to protect attorney-client privilege, confidential, sensitive, and proprietary information, as well avoid conflicts of interest from AI applications used in one’s own practice or by others and know how to detect and identify the use of AI by others.
- Stay current on ethical debates that already are bubbling to the surface but are largely unresolved such as: how to bill for using AI services that streamline tasks that used to take hours of billable work; how to deal with inherent bias and discrimination in AI algorithms; how to deal with the creation and dissemination of misinformation and false information; how to draw the line between automated law related services and the unauthorized practice of law; and what to do about the disparities in equal justice and discrimination that as ABA studies have found can be exacerbated by AI.
- Teach others how to use AI as a tool to automate mental tasks, especially those that are repetitive and mundane, to deliver legal services faster, better, and cheaper – just as machines automated physical tasks in the industrial age. Seize the opportunity to make quality legal services more widely available and affordable. Take advantage of the gift of time afforded by automation for human lawyers to think, interact, counsel, creatively solve complex problems, and exercise oversight and judgment to advance the rule of law, justice, freedom, and the peaceful well-being of people and the world we live in.
Technology-driven change—– we hope for the better — is relentlessly inevitable. Lawyers who learn how to make good use of new and advanced technology like ChatGPT, while managing risks and mitigating potential misuse, will certainly have a competitive advantage over those who ignore, outright reject or fight the inevitable widespread adoption of relentlessly advancing technologies.
Nick Allard is the founding Randall C. Berg Jr. Dean of the Jacksonville University College of Law. Previously he served as President and Dean of Brooklyn Law School. Throughout his career in government service, as a senior partner in some of the world’s most respected law firms, and as an innovator in higher education, he has been deeply involved in the impact of new technology on society, law, and policy. Allard ‘s expertise is reflected in his extensive writings, teaching, and as a frequent speaker and commentator. He is particularly interested in historical comparisons with our contemporary age of digital and biomedical discovery.
