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A. Unauthorized Practice of Law Artificial Intelligence: Ethics Issues McGuireWoods LLP T. Spahn (6/2/17) ARTIFICIAL INTELLIGENCE: ETHICS ISSUES Thomas E. Spahn McGuireWoods LLP * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. Every state has adopted its own unique set of mandatory ethics rules, and you should check those when seeking ethics guidance. For ease of use, these analyses and citations use the generic term "legal ethics opinion" rather than the formal categories of the ABA's and state authorities' opinions -- including advisory, formal and informal. ______________________ © 2017 McGuireWoods LLP. McGuireWoods LLP grants you the right to download and/or reproduce this work for personal, educational use within your organization only, provided that you give proper attribution and do not alter the work. You are not permitted to re-publish or re-distribute the work to third parties without permission. Please email Thomas E. Spahn ([email protected]) with any questions or requests. 88951932_1 Artificial Intelligence: Ethics Issues McGuireWoods LLP T. Spahn (6/2/17) TABLE OF CONTENTS Subject Page Introduction General Issues A Unauthorized Practice of Law………………………………………………. 1 B Multijurisdictional Practice………………………………………………….. 31 C Competence and Confidentiality…………………………………………… 63 D Working with Third Parties………………………………………………….. 90 E Limiting Liability………………………………………………………………. 125 F AI Material Ownership………………………………………………………... 134 Transactional Issues G Substantive Mistakes………………………………………………………… 197 H Scrivener's Errors…………………………………………………………….. 212 Litigation Issues I Ghostwriting…………………………………………….…………………....... 224 J Discovery…………………………………………………….…………………. 240 K Privilege Review………………….……………………………………………. 242 L Jury Selection………………………………………………………………….. 248 M Judges' Use of Artificial Intelligence………………………………………. 251 N Adverse Law……………………………………………………………………. 262 i 88951932_1 Artificial Intelligence: Ethics Issues McGuireWoods LLP T. Spahn (6/2/17) Introduction As with other technological advances, artificial intelligence (AI) will dramatically affect law practice in coming years. Among other things, AI implicates several ethics issues with which our profession will have to wrestle. One basic question involves AI's essential nature. Is it the practice of law? If so, non-lawyers relying on AI to advise third parties may be committing the criminal unauthorized practice of law. And lawyers insufficiently involved in such a process may be guilty of assisting in such unauthorized practice of law. Lawyers using AI as a tool to assist in their practice must address multijurisdictional practice issues. Where is a lawyer practicing law when she relies on an AI vendor in another state? Not surprisingly, lawyers relying on AI must fulfill their duties of competence to understand the new technology. And they must take reasonable steps to protect their clients' confidential information. Lawyers working with AI vendors must satisfy all the ethics rules governing such relationships with outside assistance. As with outsourcing, these duties include adequate due diligence of such vendors' confidentiality protections; checking for conflicts of interest when retaining the vendors; adequately supervising AI vendors; and determining how to bill the clients for their services. Lawyers using AI technology might be tempted to limit their practice or their liability, which implicates ethics principles. ii 88951932_1 Artificial Intelligence: Ethics Issues McGuireWoods LLP T. Spahn (6/2/17) Using AI generates enormous amounts of data, results, and other material. The ABA and state bars have dealt with the ownership of such material -- in situations where clients have paid their lawyers, and where they have not paid their lawyers. Transactional lawyers relying on AI face several questions. Must they advise their client of their malpractice when using a new process? May they take advantage of counterparties' substantive mistakes? Similarly, may they take advantage of counterparties' scriveners' errors that may result from reliance on AI? Litigators face different issues. Courts and bars disagree about lawyers' "ghostwriting" of pleadings for purportedly pro se litigants. Lawyers providing AI assistance to such litigants may face that principle. Relying on AI for discovery may implicate ethics opinions involving deception. AI will probably play an important role in privilege reviews. Courts have addressed whether that process even involves the practice of law, while bars have addressed the necessity of lawyers' involvement in that process. AI's use in jury selection implicates ethics issues. Judges' use of AI raises judicial ethics issues. And AI's uncovering of adverse law may trigger a dilemma about the necessity of disclosing such adverse law. iii 88951932_1 Artificial Intelligence: Ethics Issues McGuireWoods LLP T. Spahn (6/2/17) A. Unauthorized Practice of Law An obvious initial question implicated by artificial intelligence is whether such a process constitutes the "practice of law" for unauthorized practice of law purposes. Knowing whether use of artificial intelligence to provide legal advice amounts to the unauthorized practice of law underlies the UPL assessment of (1) non-lawyers using AI without any lawyers' involvement, and (2) lawyers working with non-lawyers (not under their supervision) in those non-lawyers' use of AI. Defining the Practice of Law Although it may be difficult for self-absorbed lawyers to accept, both the phrase "unauthorized practice of law" and the concept are hazy and uncertain at best -- yet can form the basis for severe penalties. The Restatement explains this strange dichotomy of uncertain definitions yet great stakes. To some, the expression "unauthorized practice of law" by a non-lawyer is incongruous, because it can be taken to imply that non-lawyers may engage in some aspects of law practice, but not others. The phrase has gained near-universal usage in the courts, ethics-committee opinions, and scholarly writing, and it is well understood not to imply any necessary area of permissible practice by a non-lawyer. Moreover, a non-lawyer undoubtedly may engage in some limited forms of law practice, such as self-representation in a civil or criminal matter . It thus would not be accurate for the black letter to state flatly that a non-lawyer may not engage in law practice. A non-lawyer who impermissibly engages in the practice of law may be subject to several sanctions, including injunction, contempt, and conviction for crime. Restatement (Third) of Law Governing Lawyers § 4 cmt. a (2000). 1 88951932_1 Artificial Intelligence: Ethics Issues McGuireWoods LLP T. Spahn (6/2/17) The Restatement also offers an understated explanation of the great difficulties courts and other state institutions have had in actually defining the practice of law. The simple truth is that it can be nearly impossible to precisely define the practice of law. The Restatement recognizes this awkward reality. Courts have occasionally attempted to define unauthorized practice by general formulations, none of which seems adequately to describe the line between permissible and impermissible non-lawyer services, such as a definition based on application of difficult areas of the law to specific situations. Many courts refuse to propound comprehensive definitions, preferring to deal with situations on their individual facts. Restatement (Third) of Law Governing Lawyers § 4 reporter's note cmt. c (2000). As one court similarly explained, it is often difficult, if not impossible, to lay down a formula or definition of what constitutes the practice of law. Sudzus v. Dep't of Employment Sec., 914 N.E.2d 208, 215 (Ill. App. Ct.), appeal denied, 920 N.E.2d 1082 (Ill. 2009) (unpublished opinion). Other courts have expressed similar sentiments.1 1 In re Dissolving Comm'n on Unauthorized Practice of Law, 242 P.3d 1282, 1283 (Mont. 2010) (dissolving the bar's Commission on the unauthorized practice of law, and explaining that the Attorney General will now handle any UPL matters; "We conclude that the array of persons and institutions that provide legal or legally-related services to members of the public are, literally, too numerous to list. To name but a very few, by way of example, these include bankers, realtors, vehicle sales and finance persons, mortgage companies, stock brokers, financial planners, insurance agents, health care providers, and accountants. Within the broad definition of § 37-61-201, MCA, it may be that some of these professions and businesses 'practice law' in one fashion or another in, for example, filling out legal forms, giving advice about 'what this or that means' in a form of contract, in estate and retirement planning, in obtaining informed consent, in buying and selling property, and in giving tax advice. Federal and state administrative agencies regulate many of these professions and businesses via rules and regulations; federal and state consumer protection laws and other statutory schemes may be implicated in the activities of these professions and fields; and individuals and non-human entities may be liable in actions in law and in equity for their conduct. Furthermore, what constitutes the practice of law, not to mention what practice is authorized and what is unauthorized is, by no means, clearly defined. Finally, we are also mindful of the movement towards nationalization and globalization of the practice of law, and with the action taken by federal authorities against state
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