AI, Ethics, and the Legal Profession: Navigating Ethical Considerations for Lawyers

Nov. 10

woman in black blazer checking documents

The legal profession has always been at the forefront of change, adapting to new technologies and evolving standards of ethics. In recent years, the integration of artificial intelligence (AI) and automation tools into legal practice has presented both unprecedented opportunities and ethical challenges. As lawyers harness the power of AI to streamline their work and enhance decision-making, they must navigate a complex landscape of ethical considerations. In this blog, we will explore the ethical dilemmas faced by legal professionals when using AI tools and automation in their practice.

The Promise of AI in the Legal Field

AI has brought transformative changes to various industries, and the legal field is no exception. Legal professionals are increasingly turning to AI-powered tools to improve efficiency, reduce costs, and enhance the quality of their services. We’ve previously written about AI tools available for both lawyers working in traditional legal positions as well as workplace investigators (see blogs here: Artificial Intelligence For Lawyers: Legal Technology Now | Artificial Intelligence and Mediation).

As a refresher, some of the areas where AI is making a significant impact include:

1. Legal Research: AI-powered tools can quickly sift through vast amounts of legal documents, statutes, and case law to provide lawyers with relevant information and precedents.

2. Document Review and Contract Analysis: AI can assist in reviewing and analyzing contracts, spotting discrepancies, and ensuring compliance, saving lawyers valuable time. Imagine a tool that can comb through 1,000s of pages of discovery documents at the click of a button.

3. Predictive Analytics: AI algorithms can predict case outcomes, helping lawyers make informed decisions about litigation strategy. For example, some AI algorithms can help lawyers understand the potential value of cases, saving time and energy even from the intake process.

4. Due Diligence: In mergers and acquisitions, AI can streamline due diligence processes by identifying potential risks and issues in large volumes of documents.

5. Legal Chatbots and Drafting: AI-driven chatbots can provide legal information, answer basic legal questions, and even assist in the drafting of legal documents. Think companies like LegalSifter and Spellbook, to name a couple.

Ethical Dilemmas in AI Adoption

While AI holds great potential for the legal profession, its adoption raises several ethical dilemmas that lawyers must grapple with:

1. Transparency and Accountability: One of the foremost ethical concerns is the lack of transparency in AI decision-making. Lawyers may find it challenging to explain to clients, judges, or opposing counsel how a specific AI algorithm arrived at a particular recommendation or conclusion. Even worse are some of the lawyers who have fallen prey to the belief that AI tools are accurate (recall the now-infamous news story from June 2023 of the “ChatGPT” lawyer in NY? After submitting a legal brief that included six fictitious case citations generated by an artificial intelligence chatbot, ChatGPT, he and his firm were sanctioned $5,000).

2. Data Privacy and Security: AI relies on vast datasets, some of which may contain sensitive client information. Lawyers must ensure that data privacy and security are maintained, preventing unauthorized access or breaches. It is imperative that lawyers using AI tools understand how the data is protected and used. For example, some AI tools subscribe to the OpenAI Program, which means that the data fed to the tool may be used to “learn” - and, in turn, expose confidential information to the world. For an example of how exposures could happen, recall the May 2023 situation wherein Samsung engineer leaked confidential data when they uploaded code into ChatGPT (yes, ChatGPT can write code, too).

3. Bias and Fairness: AI algorithms are only as good as the data they are trained on. If the training data is biased, the AI system can perpetuate biases, leading to unfair outcomes or reinforcing existing inequalities. This is one of the primary concerns for lawmakers focusing efforts on introducing regulations for the use of AI tools in the workplace (and the reason why algorithmic bias testing is so important).

4. Professional Responsibility: Lawyers have a duty of competence and diligence in providing legal services, including the responsibilities under the rules of professional conduct. The use of AI tools raises questions about whether lawyers can adequately supervise and understand the technology they are employing, especially if they don’t know what's behind the curtain of the tools they are utilizing.

5. Client Consent and Informed Decisions: Best practices would be for lawyers to inform clients about the use of AI in their cases, including any potential risks or limitations. However, ensuring that clients provide informed consent can be challenging when AI systems are involved, especially if the lawyer does not understand how the AI tool may actually utilize or handle the data.

Addressing Ethical Considerations

To navigate these ethical considerations successfully, legal professionals should consider several strategies:

1. Understanding AI: This is paramount. Lawyers should invest in understanding how AI works, its limitations, and how it can perpetuate pre-existing biases. This knowledge is essential for fulfilling the duty of competence.

2. Transparency and Accountability: Legal AI tools should be designed to provide explanations for their decisions (often referred to as "explainable AI" or "XAI"). Lawyers should seek out AI systems that are transparent and that can be audited.

3. Data Privacy and Security: Rigorous data protection measures should be in place to safeguard sensitive client information. Compliance with data protection laws, such as GDPR, CCPA, or HIPAA, is crucial.

4. Bias Mitigation: Lawyers should actively work to identify and mitigate bias in AI systems. This may involve regular audits of AI algorithms and the continuous improvement of training data. Other recommendations include balancing the use of AI tools with human review to mitigate potential bias-driven outcomes.

5. Professional Supervision: Lawyers should maintain active supervision over AI systems. They should not rely blindly on AI-generated results but critically evaluate and validate them.

6. Client Communication: Open and transparent communication with clients is essential. Lawyers should explain how AI is being used in their cases and provide clients with information about the limitations and potential risks.

The Legal Industry's Response

Recognizing the importance of addressing AI-related ethical dilemmas, legal organizations, and bar associations have taken steps to provide guidance and establish best practices:

1. Ethics Committees: Many bar associations have established ethics committees specifically tasked with examining AI's ethical implications in the legal field. These committees work to provide guidance and recommendations for lawyers.

2. Continuing Legal Education: Legal professionals are encouraged to engage in ongoing education and training in AI ethics. This helps lawyers stay informed about evolving ethical standards and best practices.

3. Model Rules and Guidelines: Some jurisdictions have introduced or proposed model rules and guidelines that address the ethical use of AI in legal practice. These rules provide a framework for lawyers to follow.

4. AI Certification: Some legal tech companies offer AI certification programs that aim to educate lawyers on AI technology and ethics. These programs help lawyers demonstrate their competence in AI-related matters.

Case Studies in Ethical AI Use

Let's examine a few case studies that illustrate the ethical considerations in the use of AI in the legal profession:

Predictive Policing: Some law enforcement agencies use AI algorithms to predict crime hotspots and allocate resources accordingly. These algorithms have faced criticism for potentially reinforcing biases in policing practices, raising ethical concerns about fairness and discrimination.
AI-Generated Legal Documents: Online platforms that generate legal documents using AI have become increasingly popular. Lawyers using these tools must ensure that the documents produced meet legal standards and do not compromise the interests of their clients.
Document Review in e-Discovery: AI-driven document review tools are widely used in e-discovery processes. Lawyers must carefully oversee the use of these tools to ensure that relevant documents are not missed and that privilege and confidentiality are maintained.

The Path Forward

The adoption of AI in the legal profession is not a matter of if but when. As AI tools become more integrated into legal practice, lawyers must continue to adapt to the changing landscape of ethical considerations.

To navigate these challenges effectively, legal professionals should prioritize ongoing education, transparency, and accountability. Ethical standards in the use of AI will continue to evolve, and it is the responsibility of the legal community to shape these standards in ways that uphold the principles of justice and fairness.

By embracing AI while remaining vigilant about its ethical implications, lawyers can leverage technology to improve their practice while upholding the highest standards of ethical conduct. In doing so, they can fulfill their duty to serve the best interests of their clients and society as a whole, ensuring that justice is not compromised in the age of AI.

Interested in learning more about AI in the workplace? Contact Wagner Legal PC for more information about our Confidential AI Compliance and Ethics Coaching and Training services. And don’t forget to subscribe to receive the Legal Cut, a newsletter built to keep you informed with the latest legal insights of the entertainment industry!