Feb 05, 2024
Practicing In A New World. How Generative AI Is Transforming The Legal Landscape.
Lincoln AWARD WINNER Practicing in a BY MORGAN B. HANDWERKER New World How generative AI is transforming the legal landscape. BENJAMIN FRANKLIN ONCE SAID, “… IN THIS WORLD, NOTHING IS CERTAIN EXCEPT death and taxes.”1 Yet, in recent years, this quote has missed a third key certainty. Now, nothing in life is certain except death, taxes, and the constant evolution of technology. The rise in new technology has rapidly and undoubtedly changed the landscape of the legal profession. __________ 1. NCC Staff, Benjamin Franklin’s Last Great Quote and the Constitution (Nov. 13, 2022), law.isba. org/4au9cVK. MORGAN HANDWERKER is an associate attorney at Schiller DuCanto & Fleck LLP in Chicago. She concentrates in divorce, custody, international parenting disputes, orders of protection, pre- and postnuptial agreements, and adoption. The author would like to thank her wonderful research assistant, Penelope Pentzas, for her assistance with this article. mhandwerker@sdflaw.com ▼TAKEAWAYS >> ISBA RESOURCES >> • Generative artificial • ISBA PracticeHQ, Vetting AI for Attorneys, law.isba.org/3NCMGAf. intelligence (AI) is a category of AI that can generate content • Hon. E. Kenneth Wright Jr, Hon. Michael Chmiel, & Edward Casmere, Artificial indistinguishable from content Intelligence Update, Bench & Bar (Dec. 2023), law.isba.org/3GM7PEv. created by humans. • David A. Johnson Jr., Five Steps for Performing Due Diligence on an Acquisition • For attorneys, generative Target’s Use of Generative AI, The Counselor (Nov. 2023), law.isba.org/3RRt520. AI can be a useful tool that can increase efficiency and simplify complex tasks. However, attorneys must be careful in In an era defined by rapid technological fewer hours (and charge clients less money) for using generative AI results, and advancement, the legal profession finds itself routine drafting projects. some courts require disclosing at the nexus of innovation and tradition. Legal research. Generative AI can help legal whether AI was used in an Generative artificial intelligence (AI), stands professionals conduct extensive legal research attorney’s work. as proof of the transformative power of faster and more efficiently. It can analyze large • The Illinois Rules of technology, promising to reshape the landscape volumes of legal texts, cases, and statutes to Professional Conduct provide of law and advocacy. provide applicable information and precedents. This article examines the intersection Predictive analytics. Generative AI can several pointers applicable to of generative AI and the legal profession, analyze historical case data to predict legal the ethical use of generative AI, exploring how this new, ever-changing outcomes.5 This can assist lawyers in making and somewhat imply disclosing technology is redefining the practice of law. more informed decisions, such as whether to clients when this tool is being From automating routine tasks to modernizing to take a case to trial or pursue settlement used to assist their case. legal research, generative AI is a catalyst for negotiations. This feature can help lawyers who change that has the potential to expand access charge contingent fees to make significantly to justice. But the use of generative AI also more money while potentially bearing less risk. raises critical questions about technology and Document analysis. Generative AI can legal ethics. simplify document analysis by conducting due diligence and reviewing contracts.6 For Generative AI example, generative AI can conduct due Generative AI refers to a subset of diligence in mergers and acquisitions by AI technology designed to generate new reviewing and summarizing large sets of content, such as text or images, that is often documents, helping lawyers identify potential indistinguishable from content created by risks and opportunities. Additionally, humans.2 Generative AI systems are built using generative AI can review and isolate important deep learning techniques, particularly with information from contracts, allowing lawyers recurrent neural networks (RNNs) and more to identify key terms and potential issues. This advanced models like generative adversarial generative-AI feature can be particularly useful networks (GANs) and variational autoencoders in contract management and compliance. (VAEs).3 __________ 2. McKinsey & Co., What is Generative AI? (Jan. 19, Benefits of using generative AI 2023), law.isba.org/41pkOW9. 3. Alyssa Schroer, What Is Artificial Intelligence?, Built In Generative AI has the potential to offer (Jul. 27, 2023), law.isba.org/4ao8Spf; George Lawton, What Is Generative AI? Everything You Need to Know, TechTarget several benefits to the legal profession: (Oct. 2023), law.isba.org/3Tw4z7Q; Amazon Web Services, Document automation. Generative AI can Inc., What Is GPT?, law.isba.org/3RtDEH5. 4. Kritika Singh, et al., 16 AI Legal Drafting Tools for assist in generating legal documents, contracts, Effortless Legal Perfection, Geekflare (Aug. 28, 2023), law. and agreements quickly.4 This can save lawyers isba.org/3GQ6XP4. 5. Matthew Stepka, Law Bots: How AI Is Reshaping the time by automating the drafting of routine Legal Profession, American Bar Association (Mar. 2022), law.isba.org/3RMQTUm. documents, allowing them to focus on more 6. Rob Toews, AI Will Transform the Field of Law, (Dec. complex legal work. In turn, lawyers can bill 19, 2019), law.isba.org/3Rrrsqk. 22024 Lincoln Award Legal Writing Contest Winners LAWYERS SHOULD ALWAYS AND The first-place winner of the 2024 Lincoln Award Legal Writing Contest is Morgan CLEARLY COMMUNICATE WITH Handwerker, whose submission, “Practicing in a New World,” appears in this issue of the THEIR CLIENTS ABOUT THE USE Illinois Bar Journal. OF AI IN CASES, INCLUDING ITS In second place is Donna Etemadi for her article, “Decoding the Dilemma of Deep- BENEFITS AND LIMITATIONS. ALSO, fakes.” The third-place entry was awarded to Jessica Pullen for her entry, “Social Service: Illinois Supreme Court Rule Allows Service Via Social Media, Text, and Email.” Each of their LAWYERS SHOULD BE SURE TO articles will appear in an issue of the Illinois Bar Journal later this year. OBTAIN INFORMED CONSENT, WHEN The first, second, and third-place winners received $2,500, $1,500, and $1,000, respec- NECESSARY, FROM CLIENTS. tively. They were among 18 other submissions, some of which also will appear in upcoming issues of the Illinois Bar Journal. On behalf of the contest’s sponsors—the Illinois Bar Journal Editorial Board and the ISBA Young Lawyers Division—we would like to congratulate the winning authors and thank all contest participants and judges. Details about the 2025 Lincoln Award Legal Writing Access to justice. Generative AI has Contest will be announced this spring. Information also will be posted online at isba.org/ibj/ the power to increase access to justice in lincolnwritingaward. numerous ways. Chatbots powered by generative AI can provide preliminary help to potential clients and/or pro se litigants by answering common legal court opinions.9 Ultimately the attorney or unauthorized access. The more questions.7 The automation of routine was sanctioned by the U.S. District Court information that an attorney inputs into tasks through generative AI can reduce for the Southern District of New York.10 generative AI, the more exposure and operational costs for law firms.8 This in Bias and fairness. An AI model can risk of malpractice for the attorney. This turn can lead to legal services becoming inherit biases from the data it is trained is particularly problematic when lawyers more affordable to a broader range of the on.11 In the legal context, biased AI use publicly available generative-AI tools public. In theory, this could result in a outputs can lead to unjust outcomes and like ChatGPT that often lack strict and decrease in the number of pro se litigants, reinforce existing disparities.12 Therefore, necessary data confidentiality protections. who often require more of the court’s AI has the potential to perpetuate Client understanding. Clients may not attention. Furthermore, generative AI can such bias and unfairness, which is fully understand the role of generative assist in translating legal documents and actively being combated by many legal AI in their legal matters. Lawyers should conversations, making it easier for legal professionals through various diversity, ensure that clients are informed about the professionals to work across different equity, and inclusion initiatives. use of generative-AI tools in their matter, including the benefits and the limits languages and communities. Lack of legal expertise and overreliance of generative AI to manage the client’s on AI. Generative AI lacks the nuanced Pitfalls of using generative AI expectations. understanding and legal expertise that The use of generative AI in the legal human lawyers possess.13 Complex legal Job displacement. The automation of profession offers various benefits, but it matters often require the interpretation of __________ also raises several concerns that need to be law, ethics, and context, which generative 7. Jeffrey R. Schoenberger, Artificial and Superficial Intelligence, 111 Ill. B.J. 42 (Aug. 2023), available at carefully addressed, specifically: AI may not fully grasp. There is a risk that law.isba.org/41wXhme. Accuracy. Generative AI systems lawyers may become overly dependent on 8. Id. 9. Dan Mangan, Judge Sanctions Lawyers for Brief can, and often do, make errors, which generative-AI tools, potentially neglecting Written by A.I. With Fake Citations, CNBC (Jun. is particularly problematic in legal their own critical reasoning, legal skills, 22, 2023), law.isba.org/484c75X; see also Benjamin Wieser, et al., The ChatGPT Lawyer Explains Himself, matters where precision is essential. and professional judgment. N.Y. Times (Jun. 8, 2023), law.isba.org/47acv1w. 10. Mangan, supra note 9. Relying on AI-generated documents or Data privacy and security. Legal 11. Luca CM Melchionna, Bias and Fairness in recommendations without thorough documents contain restricted and Artificial Intelligence, New York State Bar Ass’n (Jun. 29, 2023). human review can lead to errors confidential information.14 The use of 12. Clio, AI and the Law: What are the Ethical materially affecting a matter. For example, generative AI in document formation, Considerations?, law.isba.org/3GPYrbm. 13. Andrew Zashin, Dangers of Over-Reliance an attorney in New York used AI to write analysis, and management must on AI in the Legal Profession, Pittsburgh Jewish Chronicle (July 13, 2023), law.isba.org/3GPru6n. a pleading. The AI-generated pleading prioritize data privacy and security to 14. Legal AI: The Unseen Data Privacy Risks, fabricated quotes and cited nonexistent protect client information from breaches LegalFly (Aug. 9, 2023), law.isba.org/48n1gUr. 32024 Lincoln Award Legal Writing Contest Judges THE LEGAL PROFESSION SHOULD Hon. Terrence J. Lavin VIEW AI AS A TOOL, NOT A Justice Lavin of the First District of the Illinois Appellate Court spent 27 years as a civil trial lawyer in Chicago, is a past president of the ISBA and REPLACEMENT, ENSURING THAT the Society of Trial Lawyers, and is a fellow of the American College of Trial JUSTICE REMAINS GUIDED BY Lawyers and the International Academy of Trial Lawyers. HUMANS CONSISTENT WITH THE Hon. Michelle A. Vescogni PRINCIPLES OF FAIRNESS AND Associate Judge Michelle A. Vescogni of the Thirteenth Judicial Circuit EQUITY. presides primarily over domestic relations cases. Judge Vescogni serves on the board of directors of the Illinois Judges Association and the Illinois Bar Foundation. She is a long-time member of the Illinois State Bar Association, currently serving on the Bench & Bar Section Council and the Standing Com- mittee on the Attorney Registration and Disciplinary Commission. Ethical considerations in using Adam B. Lawler generative AI Adam Lawler is an attorney and entrepreneur from Marion and founded the As set forth above, there are numerous Lawler Brown Law Firm, where he currently serves as managing partner. ethical concerns lawyers may face Under his leadership, the firm has grown into a team of six attorneys and a while using generative AI, such as support staff of more than 24 individuals. ensuring that clients have competent Howard L. Huntington and knowledgeable legal representation, Howard L. Huntington is a partner at Franco Moroney Buenik, LLC, in Chicago. maintaining confidentiality, and using He focuses on commercial litigation, construction defect, construction injury, best billing practices.16 The Illinois Rules product liability, and transportation litigation law. of Professional Conduct (IRPC) provide ethical rules for attorneys practicing law in Illinois. When it comes to generative Michelle D. Porro AI and legal practice, there are numerous Michelle Porro is a partner at Porro Niermann Law Group in Aurora, and intersections and considerations within concentrates on workers’ compensation law. She currently serves on the Illinois State Bar Association’s Workers’ Compensation Law Section Council. the IRPC.17 She has served on the ISBA Assembly and is a past-president of the DuPage Competence (IRPC 1.1). Rule 1.1 Association of Women Lawyers. requires attorneys to provide competent representation to their clients.18 With the rising use of generative AI to conduct legal research, lawyers should stay up to date on changes to statutes or new routine legal tasks through generative AI must ensure that they are not utilizing caselaw. Furthermore, with the integration has led to concerns about job insecurity generative AI features to engage in the of generative AI in the legal profession, within the legal profession, potentially unauthorized practice of law, and their lawyers should be competent not only in impacting paralegals, legal assistants, and use of this technology should adhere to traditional legal skills but also in the use other support staff.15 As generative AI jurisdiction-specific rules and procedures. and understanding of generative AI tools. is used to increase efficiency in the legal Addressing the above concerns requires They should use generative AI effectively __________ field, it could result in fewer available jobs careful ethical considerations, ongoing 15. Steve Lohr, A.I. Is Coming for Lawyers, Again, for paralegals, legal assistants, and other supervision, and development of clear N.Y. Times (Apr. 10, 2023), law.isba.org/48n1qaH. 16. Mark C. Palmer, The Rise of ChatGPT: Ethical support staff. guidelines and rules for the use of genera- Considerations for Legal Professionals, 2Civility (May Unauthorized practice of law. The tive AI in the legal profession. Legal profes- 12, 2023), law.isba.org/3TwBFnV. 17. Natalie Pierce, et al., ChatGPT Doesn’t Have use of generative AI in providing legal sionals should use generative AI as a tool to Ethical Obligations, But Attorneys Do, Bloomberg information or advice should comply with enhance their practice rather than replace Law (July 11, 2023), law.isba.org/3v54Sw5; Devin Bates, ChatGPT: A Lawyer’s Friend or Ethical Time legal regulations. As set forth more fully their expertise. Overall, lawyers need to Bomb? A Look at Professional Responsibility in the Age of AI, JD Supra (Apr. 20, 2023), law.isba. below, many courts are placing restrictions ensure that they uphold their ethical obliga- org/48ivAj0. on the usage of generative AI. Lawyers tions to clients and the legal system. 18. Ill. R. Prof’l Conduct 1.1. 4to provide competent representation lawyers must safeguard generative-AI AI was used.28 while also staying informed about systems to maintain client confidentiality By way of example, Judge Brantley generative AI’s constraints and potential and that sensitive information is not Starr of the U.S. District Court for the biases. Though it is not explicitly in the inadvertently disclosed. When using Northern District of Texas in his standing IRPC, comment 8 to Rule 1.1 suggests generative AI, lawyers should consider order has a mandatory certification that lawyers should stay current with data security and privacy requirements, attesting no portion of any filing will technology’s impact on the practice of law. ensuring that generative-AI systems and be drafted using generative AI or if This seemingly includes understanding the data it handles comply with rules any language was drafted by generative generative AI’s role and its implications for related to client confidentiality and trust AI, it was checked by a human for legal practice. account management. accuracy.29 Furthermore, Magistrate Responsible representation (IRPC 1.3). Conflict of interest (IRPC 1.7, 1.8, and Judge Gabriel A. Fuentes with the U.S. Rule 1.3 obligates lawyers to act with 1.9). Generative AI can assist lawyers in District Court for the Northern District reasonable diligence when representing conflict checks and identifying potential of Illinois implemented a standing order their clients.19 Lawyers should use conflicts of interest. However, as per that requires parties to disclose if they generative-AI tools to enhance their Rules 1.7, 1.8, and 1.9, lawyers remain used generative AI tools in document ability to represent clients effectively and responsible for conducting thorough preparation.30 efficiently, while not neglecting their duty conflict checks and managing conflicts of Advice for lawyers using of responsible, diligent advocacy. interest.23 generative AI Communication (IRPC 1.4). Simply put, Candor to the tribunal (IRPC 3.3). When lawyers use generative AI Rule 1.4 requires lawyers to reasonably When using AI-generated documents or in their legal practice, it is essential to communicate with their clients.20 When information in legal proceedings, lawyers approach its adoption thoughtfully and using generative AI in legal matters, must ensure that they comply with Rule ethically. Here is some advice for lawyers lawyers should ensure that clients 3.3, which pertains to candor toward the when using generative AI: understand the role of generative-AI tribunal.24 Lawyers should accurately Understand the technology. Invest tools, the potential implications, and how represent the sources of AI-generated time in understanding how generative generative AI may affect their cases. Clear content so as to not mislead the court. AI works, including the capabilities and communication regarding the use of Maintaining integrity and avoiding limitations. While AI can automate tasks, generative AI is essential. misrepresentation (IRPC 8.4). Rule 8.4 pro- it is essential that a lawyer maintain a Reasonable fees (IRPC 1.5). Lawyers hibits attorneys from engaging in “dishon- hands-on approach and exercise judgment must charge reasonable fees for their esty, fraud, deceit, or misrepresentation.”25 in reviewing AI-generated content. To services.21 The use of generative AI can Lawyers must be cautious when using that end, lawyers should always verify the impact the efficiency of legal services, generative AI to ensure that AI-generated accuracy of AI-generated documents and potentially affecting billing practices. For content is accurate and does not misrepre- recommendations. Additionally, lawyers example, an ethical conundrum arises sent facts or law. who intend to use generative AI in their when a lawyer must decide if they should These intersections highlight the practice should consider participating in spend an hour reviewing documents importance of lawyers adapting to training and continuing legal education versus spending 10 minutes reviewing technological advancements like generative programs to enhance their generative AI the synthesis of documents provided by AI while upholding their ethical duties and proficiency. Moreover, lawyers should generative AI. While a client may prefer obligations under the IRPC. regularly assess how generative AI may for the lawyer to use generative AI, which __________ Generative AI and the judiciary would decrease fees, generative AI lacks 19. Ill. R. Prof’l Conduct 1.3. the ability to understand nuanced details To combat inappropriate usage of 20. Ill. R. Prof’l Conduct 1.4. 21. Ill. R. Prof’l Conduct 1.5. of documents. Lawyers must carefully self- generative AI, some judges are requiring 22. Ill. R. Prof’l Conduct 1.6. 23. Ill. R. Prof’l Conduct 1.7, 1.8, 1.9. reflect on best practices. In sum, lawyers mandatory reporting if generative AI is 24. Ill. R. Prof’l Conduct 3.3. should be transparent with clients about used to draft any filing. Depending on 25. Ill. R. Prof’l Conduct 8.4. 26. JD Supra, Court-Mandated AI Disclosures: the use of generative AI and how it may the jurisdiction, attorneys are required to What You Need to Know When Using AI in Court affect legal fees. disclose using any kind of generative AI in Filings (Jul. 13, 2023), law.isba.org/3RwvSw9. 27. Id. Confidentiality (IRPC 1.6). Rule 1.6 a pleading to the court26 or only disclose 28. Id. mandates attorneys to protect the when using generative AI.27 Some judges 29. Judge Brantley Starr, Mandatory Certification Regarding Artificial Intelligence, law.isba. confidentiality of client information.22 require a general AI disclosure whereas org/3ROdjUn. 30. Magistrate Judge Gabriel A. Fuentes, Standing When using generative AI for legal others require disclosure on the specific Order for Civil Cases Before Magistrate Judge Fuentes research, document review, or other tasks, portion of the filings in which generative (May 31, 2023), law.isba.org/3GQ7O2e. 5affect their legal practice and be prepared plan to use generative AI. Finally, lawyers as we embrace this technology, we must to make changes as needed. must be cognizant of, and comply with, remain alert in addressing the ethical and Ethical considerations. Ensure that jurisdiction-specific rules and regulations practical challenges it presents. usage of generative AI aligns with lawyers’ governing the use of generative AI in legal While generative AI can enhance ethical obligations pursuant to the IRPC. practice. efficiency and accessibility, it must not First, lawyers should always and clearly By maintaining a proactive and ethical overshadow the critical legal expertise and communicate with their clients about the approach to using generative AI, lawyers human judgment lawyers provide. The use of generative AI in cases, including can harness the benefits of this technology legal profession should view generative its benefits and limitations. Also, lawyers while upholding their professional AI as a tool, not a replacement, ensuring should be sure to obtain informed responsibilities. that justice remains guided by humans consent, when necessary, from clients. consistent with the principles of fairness Conclusion One potential solution is to add a section and equity. By responsibly integrating Generative AI is poised to revolutionize to an engagement agreement delineating generative AI into our legal practices, we the legal profession in ways we could have the usage of generative AI when handling can uphold the integrity of the profession only imagined years ago. Its ability to a client matter. while advancing access to justice. In this automate routine tasks, streamline legal Prioritize data security and privacy. dynamic partnership between humans research, and provide predictive insights Lawyers may want to consider investing and machines, the legal profession stands holds tremendous promise for legal in extra layers of cybersecurity protection on the edge of a new era, one where practitioners and their clients. However, depending on the extent to which they innovation and tradition coexist. Reprinted with permission of the Illinois Bar Journal, Vol. 112 #2, February 2024. Copyright by the Illinois State Bar Association. isba.org 6
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