In the avalanche of news about legal tech developments, including a recent SRA consultation on (among other things) the role it should play in future legal tech regulation, here is the latest regulatory news from bars in the USA. So much has happened there over the summer that the following gives just the briefest indications, with appropriate links for those who want to read further.
I wrote last week about the adoption in August by the American Bar Association (ABA) of Best Practice Guidelines for Online Legal Document Providers.
August was a busy month for the ABA, because it also adopted a resolution on artificial intelligence (AI).
The resolution is short, but it is the report which supports it which is worth reading, since it fleshes out the background. Here is the resolution in its totality:
'That the American Bar Association urges courts and lawyers to address the emerging ethical and legal issues related to the usage of artificial intelligence (“AI”) in the practice of law including: (1) bias, explainability, and transparency of automated decisions made by AI; (2) ethical and beneficial usage of AI; and (3) controls and oversight of AI and the vendors that provide AI.'
The supporting report covers how AI is used in lawyers’ firms, and what ethical issues it raises.
Regarding areas of work, it lists the following, with helpful links to further articles and research in each topic:
- electronic discovery and predictive coding
- litigation analysis and predictive analysis
- contract management
- due diligence reviews
- wrongdoing detection
- legal research
- detecting deception
Regarding the ethical issues touched by AI, it lists the following, which are also helpful to solicitors:
- competence (and diligence) - lawyers have a duty to identify the technology that is needed to represent the client effectively, as well as determine if the use of such technology will improve service to the client. At the same time, lawyers must also have a basic understanding of how AI tools operate.
- communication - a lawyer’s duty of communication includes discussing with his or her client the decision to use AI in providing legal services. A lawyer should obtain approval from the client before using AI, and this consent must be informed. The discussion should include the risks and limitations. A lawyer’s decision not to use AI may also need to be communicated if using AI would benefit the client. Indeed, the lawyer’s failure to use AI could be a breach of the rule which requires lawyers’ fees to be reasonable. Failing to use AI could arguably result in a lawyer charging an unreasonable fee to a client.
- confidentiality - the use of some AI tools may require client confidences to be shared with third-party vendors. As a result, lawyers must take appropriate steps to ensure that their clients’ information is appropriately safeguarded.
- supervision - lawyers have an ethical obligation to supervise lawyers and non-lawyers (whether human or not) who are assisting them in the provision of legal services. The ABA states that there are some tasks that should not be handled by today’s AI technology, and a lawyer must know where to draw the line.
The ABA has not been alone in producing regulatory documents over the summer on the relationship between tech and access to justice. Three US states – California, Arizona and Utah – also produced reports.
In California, the bar’s Task Force on Access Through Innovation of Legal Services produced in July 16 options for regulatory reforms to promote access to justice. Its main three options were the following, some of which have a familiar ring to us:
- narrowing restrictions on the unauthorised practice of law to allow people or businesses other than a lawyer or law firm to render legal services, provided they meet appropriate eligibility standards and comply with regulatory requirements;
- permitting a non-lawyer to own or have a financial interest in a law practice; and
- permitting lawyers to share fees with non-lawyers under certain circumstances, and amending other lawyer rules regarding advertising, solicitation, and the duty to provide legal services competently.
In Arizona, its Legal Services Task Force reported in July as well, with considerable overlap with the California options on non-lawyer participation in legal services.
The Utah State Bar’s conclusions in August had some similarities, but its novel contribution was to propose a regulatory sandbox to permit innovation in designated areas, including non-lawyers and technology companies. A regulatory sandbox, for those unfamiliar with a now fashionable concept, creates a controlled environment in which innovations, which may be illegal or unethical under current regulations, can be piloted and evaluated. You will remember that the SRA introduced a similar idea last year, called an ‘Innovation Space’.
We can barely keep up with the pace of change. Yet one of the principal lessons from the US reports is that solicitors are nevertheless under a duty to do so, if we are to provide a proper service to our clients.