The Intersection of Artificial Intelligence and the Model Rules of Professional Conduct

Feb 5, 2019

By Linda Henry

See all of Our JDSupra Posts by Clicking the Badge Below

View Patrick Law Group, LLC

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:   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.


FTC Provides Guidance on Using Artificial Intelligence and Algorithms

The Director of the Federal Trade Commission (FTC) Bureau of Consumer Protection recently issued guidance in its Tips and Advice blog as to how companies can manage consumer protection risks that may arise as a result of using artificial intelligence and algorithms.

Is Robotic Process Automation Reducing or Increasing your Software Licensing Fees?

While statistics regarding the increase in the use of Robotic Process Automation (RPA) vary, it is clear that the use of RPA is on the rise. Companies are rolling out RPA in an effort to increase productivity, cut costs and reduce errors.

A Few More Thoughts About Improving Our Force Majeure Provisions

The Coronavirus pandemic has brought the force majeure provision into the spotlight. A quick Google search brings up countless articles published in the past few weeks by lawyers worldwide about how to use force majeure provisions offensively and defensively in these uncertain times.

Government Efforts to Fight a Pandemic Challenge Data Privacy Concerns

Media outlets reported this week that representatives from Facebook, Google, Amazon, and Apple are meeting with members of the White House to brainstorm about ways in which the “Big Four,” can leverage the consumer information they possess to help in the war against COVID–19.

School or Parent? Factors Playing into the FTC’s Analysis of who should provide Parental Consent under COPPA in the Age of EdTech

The use of education technologies (EdTech) has exploded in recent years. In fact, between online learning sites, one to one device deployments in school districts and personalized curriculum services, virtually every student today has some online or digital component to their learning.

NYC’s Task Force to Tackle Algorithmic Bias Issues Final Report

In December, 2017 the New York City Council passed Local Law 49, the first law in the country designed to address algorithmic bias and discrimination occurring as a result of algorithms used by City agencies.

While you’ve been focused on CCPA Compliance Efforts, Elon has Been Developing Cyborgs

On November 27, 2019, the Cybersecurity and Infrastructure Security Agency (CISA) of the Department of Homeland Security (DHS) released for public comment a draft of Binding Operational Directive 20-01, Develop and Publish a Vulnerability Disclosure Policy (the “Directive”).

DHS Cybersecurity Arm Directs Executive Agencies to Develop Vulnerability Disclosure Policies

On November 27, 2019, the Cybersecurity and Infrastructure Security Agency (CISA) of the Department of Homeland Security (DHS) released for public comment a draft of Binding Operational Directive 20-01, Develop and Publish a Vulnerability Disclosure Policy (the “Directive”).

Open Internet Advocates Rejoice: Ninth Circuit Finds Web Scraping of Publicly Accessible Data Likely Does Not Violate CFAA

The Ninth Circuit Court of Appeals recently handed open internet advocates a big win by upholding the right of a data analytics startup to use automated bots to scrape publicly available data.

The ABA Speaks on AI

By Jennifer Thompson | Earlier this week, the American Bar Association (“ABA”) House of Delegates, charged with developing policy for the ABA, approved Resolution 112 which urges lawyers and courts to reflect on their use (or non-use) of artificial intelligence (“AI”) in the practice of law, and to address the attendant ethical issues related to AI.