Ethical Pitfalls When Lawyers are Using Artificial Intelligence

Abstract

Artificial intelligence (“AI”) is everywhere. And the recent explosion of new AI technologies and tools has introduced many new terms that you need to know to understand it. The technology fuels virtual assistants, like Apple’s Siri, helps physicians to spot cancer in MRIs and allows your phone to recognize your face. Lawyers have used artificial intelligence for years in reviewing large amounts of discovery to determine the information that is relevant to the case at issue.

Artificial intelligence uses machine learning to learn from data and improve its performance. The more data AI gathers, the more efficient it becomes. AI is already a part of our everyday lives: social media, personal assistants, customer service, navigation software, just to name a few. Legal AI is artificial intelligence specifically designed to help make the legal process easier for professionals and clients; it can assist with tasks like documentation, bookkeeping, data analysis, research, and writing legal briefs.

Machine learning tools such as AI are not new to the legal field; Westlaw and Lexis both use the technology to retrieve information and documents from their huge databases. The real value of AI lies in expediting the traditional legal research processes that can take, at best, several hours and endure for several months to even over a year in complex cases.

The release of ChatGPT in November 2022 captured the world’s attention because of its ability to generate human-like responses based on what it has learned from scanning vast amounts of online materials. ChatGPT has already evolved from its original release, and Apple, Microsoft, Google, and others are also developing forms of generative AI.

There are a number of places showing concern about attorney's use of generative AI and the issues and ethical pitfalls that are possible as a result, including California, Florida, and Michigan discussed in the paper

This paper also includes a paper on the ethical requirements for lawyers using ChatGPT written by ChatGPT itself! The good news is that ChatGPT has many of the same concerns that my article expressed.

Keywords: Generative artificial intelligence, generative AI, ChatGPT, confidentiality, legal ethics, attorney-client privilege

JEL Classification: K00, K10, K20, K22, K29, K36, K40