The legal industry is on the brink of transformative change driven by the power of generative artificial intelligence (GAI) technologies such as ChatGPT.  Goldman Sachs has predicted GAI could propel a 7 percent (or almost $7 trillion) increase in global GDP and lift productivity growth by 1.5 percentage points over a 10-year period.  Despite this growing omnipresence, some lawyers worry about using GAI in the practice of law, and others have even argued for an outright prohibition. That would be short-sighted and irresponsible. Instead, lawyers should adopt a more nuanced and balanced approach that carefully harnesses GAI’s benefits while minimizing its potential risks.  Lawyers who seize this opportunity will be at the forefront of the evolving legal industry and help to shape a future where humans and technology coexist harmoniously, leading to a more innovative and client-centric legal profession.

In a recent paper, we articulate the many advantages GAI can bring to the legal field and share several examples of how law firms and other organizations are successfully using GAI.  The potential for GAI – when paired with human lawyers – to improve the legal industry is tremendous.  Federal courts have already begun to acknowledge GAI’s inevitable role in litigation and the need for it to be used properly. Multiple judges have issued standing orders requiring explicit disclosures relating to the use of GAI in legal proceedings. We predict this is only the tip of the iceberg and, eventually, most courts will require some type of disclosure relating to the use of GAI in legal submissions.

In the rapidly advancing realm of GAI, it is important to note that lawyers are not exempt from their existing obligations to comply with ethical standards. Comment 8 to Model Rule of Professional Conduct 1.1 states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  This clearly articulates that lawyers have an obligation to stay up to date with relevant technology to provide competent representation. The language in the Model Rules is deliberately vague to account for evolving technologies. Lawyers also have a duty to supervise non-lawyer assistance, whether human or not, as the title of Model Rule 5.3 has stated explicitly since 2012. These combined professional obligations underscore the notion that lawyers should never assume any results generated by GAI are inherently accurate. They should treat the output the same as they would any other type of non-lawyer assistance – as a tool that needs supervision and validation before it is incorporated into any legal work.

In addition to their ethical obligations, lawyers should pay attention to the White House’s significant actions to promote responsible AI innovation in the U.S. These include the landmark Blueprint for an AI Bill of Rights and related executive actions, the AI Risk Management Framework, a roadmap for starting a National AI Research Resource, and other investments and actions announced earlier this year.

Our paper also addresses some of the most common arguments against integrating GAI into the legal industry. For example, some skeptics claim that ChatGPT was not specifically designed for legal work, and therefore its use for legal tasks presents significant risks. Yet many technological tools were not specifically designed for legal work, and they have been successfully adopted to drive greater efficiency in the legal profession. We also rebut other concerns about using GAI in the legal profession, such as it may (1) run afoul of legal ethics rules, (2) produce inaccurate results, (3) perpetuate bias and discrimination, (4) pose risks to privacy or confidentiality, and (5) create intellectual property or other legal risks.

There are, however, real concerns and risks about GAI, and our paper explores them as well.  It includes several strategies for mitigating these risks, such as human-machine teaming or “augmented collaboration” which is to combine people and technology in a way that leverages the respective strengths of each.  We remind lawyers that their ethical responsibility to competently represent their clients includes an obligation to understand and use appropriate technology.  In fact, we discuss the opportunity costs and other risks of not using GAI. These include (1) the unauthorized disclosure of intellectual property, confidential information, or other sensitive business information, (2) violations of privacy or data protection laws, (3) the failure to properly monitor, audit, and safeguard data, (4) reputational harm or loss of business, and (5) competitive disadvantage.  Most importantly, we articulate how law firms can effectively manage GAI’s risks by following best practices, adhering to legal and ethical standards, and using GAI responsibly. The paper includes a detailed list of the Top 10 best practices to encourage the responsible use of GAI within law firms.

After carefully comparing and balancing the benefits and risks of GAI, we conclude that lawyers should embrace its responsible use, and that law firms that choose a complete ban on GAI risk obsolescence. In fact, we predict that, by the end of 2023, organizations with GAI policies for adoption will be the market standard across several U.S. industries, including the legal sector. Embracing change is not only necessary, but vital for progress.  It is even more important for legal professionals to embrace this technology in order to represent future clients competently and effectively.  As we note in the opening of our paper, “AI won’t replace lawyers, but lawyers who use AI will replace lawyers who don’t.”

REFERENCES

Andrew Perlman, The Implications of ChatGPT for Legal Services and Society, Harvard Law School, Center on the Legal Profession, Mar-Apr 2023, https://clp.law.harvard.edu/knowledge-hub/magazine/issues/generative-ai-in-the-legal-profession/the-implications-of-chatgpt-for-legal-services-and-society/.

Nicole Yamane, AI in the Legal Field and the Indispensable Human Element Legal Ethics Demands, 33 Georgetown Journal of Legal Ethics, 877, 889, (2020) https://www.law.georgetown.edu/legal-ethics-journal/wp-content/uploads/sites/24/2020/09/GT-GJLE200038.pdf.

This post comes to us from Natalie Pierce and Stephanie Goutos, attorneys at the law firm of Gunderson Dettmer. It is based on their recent paper, “Why Law Firms Must Responsibly Embrace Generative AI,” available here.