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By: Glenn Gordon, THE PRACTICAL GUIDANCE ATTORNEY TEAM
This article discusses the use of artificial intelligence (AI) in the legal profession, including how AI can assist attorneys in accomplishing various legal tasks, as well as concerns about such usage. Also review the Lexis+ Legal AI Update offering results of a survey of legal professionals and their planned use of Generative AI going forward.
THE ARTICLE ALSO PROVIDES AN ASSORTMENT OF related resources that will provide additional guidance regarding the emergence of AI in the legal profession.
AI is already well entrenched in the legal community, and it is readily apparent that it will play an increasingly prevalent and critical role in how attorneys accomplish a wide variety of legal tasks. From contract preparation, document review, and legal analysis, the use of AI has assisted, and will continue to assist attorneys in the representation of clients. AI tools will allow counsel to circumvent what in the past have been time-consuming undertakings and, thereby, allow them to dedicate more time to higher level tasks associated with the representation of their clients. AI is computer software programmed to perform specific algorithms, which are sets of code programmed to perform tasks, analyze and recognize patterns in large sets of data, reach conclusions from such patterns, predict future outcomes, and make informed decisions based on such data. The primary concepts involved in AI are machine processing, machine learning, machine perception, and machine control. In this context the use of the word machine means an artificially intelligent system, which may include, among other things, computer software or a network of systems that serve to operate a more complex device. It entails training machines to learn based upon the data inputted into the machine, thereby allowing the machine to ascertain patterns in the subject data and reach conclusions based thereon. Data is what drives the AI machine engine, and the larger the data set, the more that AI can learn from that data.
AI can produce actual work product, legal analysis, and predictions, as opposed to providing information, such as search results, which require review and analysis to generate work product. While the potential use of AI in the legal field is substantial, it is not without risk and should be embraced with caution as this area continues to develop over time. While AI may perform numerous legal tasks and assist counsel in timely and efficiently representing clients, it should be viewed as a tool rather than a replacement for attorney work product and diligence. In other words, AI can serve as one of several tools counsel may use to enhance efficiency and provide advice and counsel to clients, but counsel must still perform their jobs, exercise care and judgment, and ensure that any reliance on any AI-generated results is verified and reasonable.
The benefits of AI in the legal industry are vast and include:
While the apparent benefits of AI in the legal industry are clear, the use of AI in conducting legal tasks must nonetheless proceed with caution. The technology is still evolving, and the accuracy of the results may be unproven, and, in certain instances, the results may contain errors. Counsel will want to verify, to the greatest extent possible, that any AI-generated results are accurate before relying on AI with respect to any work product or legal determinations. As AI’s use in the legal profession is still, relatively speaking, in its initial stages, issues will likely arise as the technology progresses and usage is expanded over time.
Counsel must ensure that any use and reliance upon AI in the performance of any legal task is reasonable under the circumstances and that the results are verified. Counsel may be subjected to liability if they utilize AI-generated results or work product that are erroneous and prove detrimental to the client’s interests. While AI-driven products can greatly facilitate counsel in accomplishing legal tasks, counsel is still ultimately responsible for their work product.
The use of AI may entail entering into licensing and other agreements that will set forth the terms and permitted uses of the subject technology. In such transactions, important contract terms and legal issues that need to be addressed include, among other things, permitted usage, ownership issues, the protection of trade secrets and confidential information, representations and warranties, indemnification, limitation of liability, and product liability.
The prevalence and proliferation of AI in commerce and industries will create opportunities throughout the legal profession. For example, the ever-increasing use of AI in consumer products creates potential liability. Product liability is based on theories of (1) negligence, (2) breach of warranty, and (3) negligence. AI vendors will need to protect themselves from potential liabilities and claims through, among other things, the inclusion of warranty disclaimers and limitation-of-liability clauses in their agreements. On the other hand, consumers who sustain injuries while using AI-driven products will seek relief for their losses if they are attributable to the subject AI. Consider, for example, accidents that have occurred with AI-driven automobiles.
AI remains largely unregulated at the current time, but it is likely that more regulations will be adopted going forward. The American Bar Association adopted Resolution 6043 at its 2023 midyear meeting, addressing how attorneys, regulators, and other stakeholders should address issues of accountability, transparency, and traceability in artificial intelligence. The resolution calls for (1) requiring entities that design, develop, and use AI to adopt guidelines that ensure that AI products and systems are controlled by human authority; (2) holding organizations accountable for consequences (including injury or harm caused by their actions) related to the use of AI, unless reasonable steps to prevent the injury were taken; and (3) requiring developers to document important decisions made with respect to the design and risk of data sets, procedures, and outcomes underlying the subject AI. The U.S. Chamber of Commerce has also recently called for the implementation of regulations to govern artificial intelligence technology,4 with concerns that such technology does not impair growth or present a national security risk.
While the use of AI is already having a significant impact on the legal profession, there are many unanswered questions about AI. This article addressed some of the ways AI is already influencing the practice of law and potential issues attorneys may encounter using AI when representing their clients. While the potential uses of AI are extensive, such use in the legal profession is not without inherent and unknown risks. With increased use and visibility, the need for regulations and safeguards is becoming apparent, and the call for regulation will increase along with the growth of AI itself. Although the future use of AI by attorneys is exciting and will expand with time, caution is always advisable.
Glenn Gordon is a Content Manager in the Lexis Practical Guidance Commercial Transactions practice area. Prior to joining the team, he served as counsel for Citrix Systems, Panasonic Corporation of North America, LG Electronics USA, Inc., and Formica Corporation.
To find this article in Practical Guidance, follow this research path:
RESEARCH PATH: Commercial Transactions > Trends & Insights > Articles
For an overview of current practical guidance on Generative AI, see
> GENERATIVE ARTIFICIAL INTELLIGENCE (AI) RESOURCE KIT
For an examination of legal issues arising from the use of AI in e-commerce, see
> ARTIFICIAL INTELLIGENCE AND AUTOMATION IN E-COMMERCE
> BIG DATA ANALYTICS PRIVACY LAW CONSIDERATIONS
> ARTIFICIAL INTELLIGENCE KEY LEGAL ISSUES
> ARTIFICIAL INTELLIGENCE AND ROBOTS IN THE WORKPLACE: BEST PRACTICES
> BIOMETRIC PRIVACY AND ARTIFICIAL INTELLIGENCE LEGAL DEVELOPMENTS
> LITIGATORS SHOULD APPROACH AI TOOLS WITH CAUTION
> EVALUATING THE LEGAL ETHICS OF A ChatGPT-AUTHORED MOTION
1. Clio Manage, Legal Document Management Software. 2. Sharon Miki, Clio, How to Successfully Organize Your Legal Files. 3. https://www.americanbar.org/content/dam/aba/directories/policy/midyear-2023/604-midyear-2023.pdf. 4. U.S. Chamber of Commerce, Artificial Intelligence Commission Report (Mar. 9, 2023).