In my role overseeing the firm’s technology committee, I am frequently asked two questions: What impact will generative AI have on how lawyers practice law? What effect will its use have on potential clients?
Benefits and Risks of AI in the Legal Industry
Generative AI products, such as ChatGPT, represent a significant shift in the legal industry. As these tools continue to develop and refine, they will help attorneys become more efficient, responsive, and ultimately achieve a better work-life balance.
However, even in their current form, these products pose significant risks without proper training. It is well documented that generative AI can hallucinate, meaning it may invent legal principles and citations entirely when asked to research the law. Additionally, these tools raise significant privacy and ethical concerns, sprinkled with a risk of bias in the generated work product.
What Lawyers Need to Know about Using AI
When training lawyers on effectively utilizing these powerful tools, my response is straightforward: use them, but do so carefully. Leverage the skills acquired in law school and through our experience as attorneys to benefit from the efficiency of generative AI, while verifying and refining the work product to meet the level of competence and excellence our clients expect from us.
Lawyers must thoroughly understand the terms of service regarding how generative AI developers use their clients’ information. This understanding is vital to uphold our profession’s cornerstone: the obligation to maintain client confidentiality. If I receive a subpoena for my client’s files, I respond that a well-established privilege protects the information from disclosure. However, if the generative AI company receives a subpoena, it likely must disclose that information. I advise attorneys and clients the same: whatever you input into one of these systems should be equivalent to handing it to a stranger on the street.
AI Competence?
Another crucial risk to consider when using generative AI is competence. While I am somewhat impressed with the quality of the content generated—such as drafting a paragraph for a contract—my subjective assessment places its work product on par with that of an average first-year law firm associate.
Why a first-year associate? Because it demonstrates competent, albeit basic, writing skills. An attorney’s value as a “scrivener” cannot be overstated; as the law school dean said at my orientation, “Congratulations, you are now a professional writer.”
The risk associated with generative AI is that competent legal representation transcends putting words on paper. If that were all that was required, anyone could rely on a form. Many lawyers use the title “attorney and counselor at law.” My role often involves being a trusted counselor. Beyond being a competent writer, my job encompasses understanding the specific factual context of each case, knowing the goals, recognizing the risks, and considering the applicable jurisdiction’s laws. For example, a contract in Pennsylvania is subject to different laws than one in New Jersey. What are the implications of federal law on a contract’s enforceability?
If I ask generative AI to draft a rent provision for an equipment lease between two doctors, where one agrees to pay the other a percentage of their revenues from use of the machine. In that case, it may produce a seemingly competent provision. However, it may fail to inform the user that such a fee-splitting arrangement could violate a complex array of federal and state fraud and abuse laws.
My value as an attorney lies not only in what I write but also in my hard-earned ability to identify issues, know the right questions to ask, and look beyond the initial prompt.
Attorney > AI
Every day, I am entrusted to handle significant transactions in my clients’ lives—selling and buying properties, homes, and businesses. In the coming years, I expect some individuals will turn to generative AI to save money, but they do so at their peril. I believe I have already negotiated agreements with parties relying solely on generative AI, and those individuals have been “penny-wise and pound-foolish,” as my clients have emerged in a better position due to my skills.
My favorite show about being a lawyer is “Better Call Saul.” In one memorable scene, Michael McKean’s character says, “Slippin’ Jimmy with a law degree is like a chimp with a machine gun!” That reflects my view of laypeople using generative AI in significant business transactions or formal legal proceedings. As the old lawyer joke goes: Why do lawyers cost so much? Because they are worth it.
