Article: AI use now widespread in US legal sector despite ethical concerns

The UK Law Society Gazette

US lawyers have been warned against profiting from the time savings offered by AI technology without passing them on to clients. This is one of the ethical issues raised by the American Bar Association, which claims to be the world’s largest voluntary association of lawyers, in a report which finds the technology already in wide use in firms and in-house departments. Judges also ‘are increasingly using AI in court administration and in the criminal justice system’.

The report, the first by the association’s task force on AI, draws a distinction between ‘extractive AI’ – systems which draw conclusions from a ring-fenced set of data – and ‘generative AI’, which draws on the web to create outputs in response to prompts from users. It finds that extractive tools are commonly used in firms and legal departments, for example in managing large data sets and analysing a judge’s previous decisions to predict how they might rule on a current case.

Use of generative AI, however, has been slowed by ‘well-publicised examples of improper use’ as well as uncertainty about rules on professional conduct and how the courts will discipline lawyers for misuse. This does not mean that the technology will not be useful, the taskforce states: ‘It simply means that lawyers are responsible for confirming the existence, accuracy, and appropriateness of the citations they submit to a court, whether or not a court has special rules about AI.’

One potentially controversial area is the use of AI in recruitment. According to the report, the sector ‘likely participates in hiring decisions that utilise AI’, for example in winnowing down lists of job applicants. While the final decisions still lie with human brains, the report notes: ’Future AI technology may shift this dynamic.’

One application that has caught on is ‘optimisation AI’ for checking spelling and grammar. This ‘is likely used by all lawyers, or should be’, the report states.

On billing practices, the task force notes that profiting from time savings may violate ABA rules where a lawyer does not pass on the efficiencies. ‘Productive use of generative AI may lead to more flat-fee or retainer agreements and less pure hourly billing,’ it predicts.

The report is bullish on the potential of AI to provide access to justice. ‘With trustworthy and responsible generative AI tools, individuals without legal representation can have the ability to get basic legal information to inform them about options’, it states. AI could also help alleviate ‘the repetitive, labour-intensive and sometimes tedious tasks’ faced by advocates with high-volume caseloads.

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