Artificial intelligence is transforming the legal profession and attorneys are increasingly using AI-powered software to assist with a wide rage of tasks, ranging from due diligence review, issue spotting during the contract negotiation process and predicting case outcomes. The use of disruptive technology such as AI raises a variety of ethical issues, and lawyers remain subject to the same rules of professional conduct even when using tools such as AI.  Although each state has adopted its own code of professional ethics, most states have based their code of professional conduct on the ABA Model Rules of Professional Conduct.  Some of the Model Rules that may apply are summarized below:

• Rule 1.1: Competence.  Rule 1.1 requires that lawyers provide competent representation, which requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation.  In addition, a comment to Rule 1.1 provides that competence includes keeping abreast of changes in the practice of law, including the benefits and risks associated with relevant technology.

Considering the speed at which AI is disrupting the legal profession and changing how lawyers provide legal services, attorneys should stay current with the benefits and risks of using AI in their legal practice.  An attorney’s duty to provide competent representation would include making informed decisions as to whether AI is an appropriate tool for its intended use in providing legal services and also whether the program actually performs as marketed.

• Rule 1.4:  Duty to Communicate.  Rule 1.4 requires that a lawyer reasonably consult with the client regarding the means by which the lawyer accomplishes the client’s objectives.  Consequently, lawyers should determine whether the lawyer should inform the client about the use of AI in providing legal advice.  In addition, there may be circumstances in which a lawyer has a duty to disclose to a client that the lawyer has elected not to use AI if such use might be beneficial to the client.

• Rule 1.5:  Fees.  Rule 1.5 prohibits a lawyer from charging fees or expenses that are not reasonable.  As with other technological tools (e.g., subscriptions to legal research platforms), the Model Rules do not prohibit passing through out of pockets costs incurred in connection with a lawyer’s use of technology, and a comment to Rule 1.5 provides that attorneys may charge an amount for services performed in-house that reasonably reflect the costs incurred by the lawyer.  Alternatively, a lawyer could secure consent from a client if marking-up the cost.   ABA Ethics Formal Opinion 93-379 (Billing for Professional Fees, Disbursements and Other Expenses) offers additional guidance, stating that “Any reasonable calculation of direct costs as well as any reasonable allocation of related overhead should pass ethical muster.  On the other hand, in the absence of an agreement to the contrary, it is impermissible for a lawyer to create an additional source of profit for the law firm beyond that which is contained in the provision of professional services themselves.”

Attorneys may also want to consider whether fees may be deemed unreasonable if an attorney fails to use AI in certain circumstances.  A recent case in the Ontario Superior Court of Justice may offer insight as to how courts in the United States may begin to view AI technology as a necessity in certain circumstances.  In Cass v. 1410088 Ontario Inc. (2018 ONSC 6959), a judge reduced attorneys’ fees awarded in part because the preparation time billed by the attorneys could have been significantly reduced if AI had been used for certain aspects of the case.  Although this case occurred in Canada, it would not be surprising if there are similar findings in U.S. jurisdictions in the not too distant future.

• Rule 1.6:  Confidentiality of Information.  Rule 1.6 includes an obligation to use reasonable efforts to prevent the unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.  Consequently, if an attorney provides a third party (e.g., technology vendor) access to client confidential information, the attorney has an obligation to understand the vendor’s security practices and make a determination that the security policies are reasonable.  

• Rule 5.1 and Rule 5.3: Responsibilities of a Partner or Supervisory Lawyer and Responsibilities Regarding Nonlawyer Assistance.  Rules 5.1 and 5.3 address an attorney’s obligation to supervise lawyers and nonlawyers to ensure their conduct complies with the professional obligations of a lawyer.  A comment to Rule 5.3 cites technology vendors as examples of nonlawyers who may assist and explains that when using such third-party services, lawyers must use “reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.” Although the comment does not specify what constitutes reasonable efforts, attorneys should undertake sufficient due diligence in order to understand the product’s limitations and capabilities, and also to determine whether the use of such technology will result in non-compliance with an attorney’s obligations (e.g., confidentiality).

• Rule 5.5:  Unauthorized Practice of Law.  The Model Rules do not define “practice of law” or provide definitive guidelines as to when the use of technology may constitute the unauthorized practice of law (UPL). In addition, case law does not provide much clarity since courts have not been consistent as to how UPL is applied to software. Despite the lack of clear guidance, however, if an attorney adheres to her duty to exercise independent judgment, supervises the use of the AI tool and confirms that the final work product is accurate, the risk of UPL should be avoided.

Rule 5.5’s prohibition of the unauthorized practice of law also raises the question as to whether tasks performed solely by a machine can be considered UPL.  In 2015, the Second Circuit distinguished between tasks performed by machines and tasks performed by lawyers (Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, No. 14-3845 (2d Cir. 2015)). The Second Circuit found that tasks that could otherwise be performed entirely by a machine could not be said to fall under the practice of law. Consequently, Lola raises the possibility that machines can reclassify tasks that were traditionally considered the practice of law as now falling outside of the scope of the practice of law.  The broader implications of Lola on UPL claims are unclear, however, if machines cannot engage in the practice of law, then courts may also find that software cannot be responsible for UPL.