The Legal Industry in the Generative AI Age: the Good, the Bad and the Ugly

The Artificial Intelligence and Chatbot Summit at the D.C. Bar on Monday explored some of the ways the legal industry can leverage commercial generative AI chatbots, and how it will change the market.

OpenAI’s ChatGPT has been a bit of the forbidden fruit for the legal industry, a reputation earned in part because of the privacy, security and accuracy risks associated with the chatbot, but also because of some infamous misuses by legal professionals—think the New York lawyer who submitted a brief drafted by ChatGPT filled with fabricated cases, for example.

In that instance, the industry reacted swiftly, with many banning the use of the bot within law firms and legal departments. While it’s clear by now that confidential and client information shouldn’t be uploaded into ChatGPT, perhaps the chatbot—and other commercially available equivalents —shouldn’t be ruled out altogether by legal professionals just yet.

During the Artificial Intelligence and Chatbot Summit at the D.C. Bar on Monday, lawyers and legal tech experts explored all the facets of generative artificial intelligence tools, from their impact on the legal industry to how they may run afoul some rules of professional conduct.

Choose Your Own Adventure

When appropriately balanced against the potential pitfalls it brings, ChatGPT can still be beneficial to legal professionals, especially in document creation and summary or as an idea generator or writing assistant.

Nicole Black, Senior Director SME and External Education at MyCase highlighted use cases ranging from summarizing cases, trial or depositions transcripts, drafting non-disclosure agreements and retainer agreements, or generating ideas for direct, cross examinations, and voir dire.

“I think there is significant potential for generative AI tools to allow solo and smaller firms to compete and charge less than the large firms, and ultimately have really successful practices,” she added.

Of course, ChatGPT doesn’t account for the entire generative AI space. There are numerous generative AI chatbots and tools available on the market, and legal professionals will likely get the best outcomes by using different ones for different use cases.

Still, legal professionals have to balance using generative AI tools built specifically for legal purposes with more general ones. The CoCounsel vs ChatGPT debate today is in many ways the successor of the Westlaw vs Google one. Here, the considerations should be similar, noted Carolyn Elefant, founder of the Law Offices of Carolyn Elefant.

“Just use it some way, use it on the fly, use it sensibly, but just play around with it so you get a sense of what it can do,” Elefant said.

To be sure, general generative AI chatbots and solutions built for the legal industry aren’t mutually exclusive, and can be used side-by-side depending on cost or privacy considerations, whether the task is unique to legal, and how much “horsepower” is needed.

Pressure on Law Education, Firm Structure and Professional Conduct Rules

Looking ahead, the panelists expect advancements in generative AI to eventually put pressure on some of the pillars of the legal industry, from law schools to rules of professional conduct to longstanding firm structures.

“I think every law school needs immediately to start introducing their students to AI, at the very beginning of their legal careers, and it needs to be integrated in my opinion with legal research and with legal writing,” William Eskridge Jr., Alexander M. Bickel Professor of Public Law at Yale Law School, told attendees.

In law firms, roles and responsibilities are likely to evolve—from a potential reduced need for junior attorneys and paralegals to an increased need for IT support staff, data specialists and technology compliance officers, Eskridge said.

“You’re going to have a big technology presence,” he added, which could put pressure on the regulation preventing non-lawyers from having equity ownership in the firm.

Where the friction between the technology and the legal industry will perhaps be most visible in upcoming months is with the rules of professional conduct.

The most obvious one might be Rule 1.1, which requires lawyers to stay abreast of technology and engage in “continuing study.” Similarly, the Rule 1.15 is likely to find itself in the spotlight in the age of generative AI.

“There’s an obligation under 1.15 that lawyers charge a reasonable fee. What is a reasonable fee? A reasonable fee takes into account the scope of the representation, how complicated it is, how much nuance there is, how long it’s going to take you,” explained Hilary P. Gerzhoy, Vice Chair of HWG’s Legal Ethics and Malpractice group.

She added, “I think what you’re going to start to see is instances in which clients are demanding that their lawyers use AI because they don’t want to pay for a team of 10 associates to do a million dollars worth of document review.”

Other rules that may seem less applicable may also become central in the age of generative AI, such as D.C. rules 5.3 and 1.6 (f)—which articulate the duty to supervise—or D.C. Rule 1.4, which requires ample communications with clients.

“With respect to AI, the critical takeaway is you need to communicate a matter sufficiently so that a client can make an informed decision about what he or she wants to do,” Gerzhoy explained.