Risk Update

Ethics Edition — Non-lawyer Lawyering… Advertising SEO… and a Bit of AI

Courts, Lawyers Must Address AI Ethics, ABA Proposal Says” —

  • “Courts and lawyers should address emerging ethical and legal issues related to the use of Artificial Intelligence, a resolution up for a vote at the American Bar Association’s annual meeting proposes.”
  • “The legal profession is known to be resistant to change, and it’s been slower than other industries to embrace modernization through legal technologies. But tech experts say lawyers’ lack of fundamental understanding of them will soon put them at a disadvantage if they don’t change their ways.”
  • “If it’s adopted, the science and technology law section hopes to establish a working group to define guidelines for legal and ethical AI usage and to develop a model standard it would submit for adoption at a future ABA House of Delegate’s meeting.”
  • “AI tools, for example, can be used by law firms to assist in legal research, trim document review time, and help revise contracts.”
  • “Another point the resolution raises is that legal AI should be “audited and auditable,’ which speaks to its transparency and trustworthiness, Economou said. Nelson concurred that lawyers need to know more about the AI they’re using. Every AI is different, so we should be asking what data was used to develop it and by whom, she said.”

(I for one welcome our AI overlords, and meeting and besting the inevitable risk blogging bot in a fair Turing Tussle. I hear word the conflicts-clearing singularity may be nigh for that matter… Daisy, daisy…)

But before the we all start learning the three laws, we may first encounter rules about humans doing more in the legal profession: “Bloomberg Law: California reportedly “inundated” with negative comments regarding proposed new rules on who can practice law, while getting support at a public hearing for those that allow sharing fees with non lawyers” —

  • “…according to a report in Bloomberg Law, ‘[t]he State Bar of California has been inundated with more than 400 comments in response to a series of sweeping proposed rule changes that include allowing nonlawyers to share in law firm profits and provide legal advice.’ More than 100 comments were filed to the bar in the first 24 hours after the group issued notice that the comment period had begun.”
  • “Again, according to the story, the individual rule change that has received the most comments is the one that would authorize nonlawyers, with appropriate regulations in place, to provide certain types of legal advice and services. The new approach, suggested in order to provide access to legal services in areas of “critical need,” including evictions, and domestic violence and immigration cases, would provide an exemption to the rules banning unauthorized practice of law. As of Aug. 5, the state bar had received 12 comments in support of the proposal, but more than ten times that number against it.”

Of course some are enthusiastic: “Changing Ethics Rules Is Key To Law Firm Innovation” —

  • “Innovation requires a clear vision, access to capital and world-class technology talent. These three ingredients are readily available around the U.S., but are largely inaccessible to law firms due to outdated, protectionist policies that prevent nonlawyers from being firm members, and from investing in law firms.”
  • “Additionally, these policies are based on unproven, outdated concerns that restricting investment in and ownership of legal services to lawyers is necessary for client protection. There is not now, nor has there ever been, any data to support these policies. Indeed, the experience of law firms in the District of Columbia, where a change in the ethics rules in 1990 permitted nonlawyers to work and invest in law firms — including having ownership interests — demonstrates that the restrictions are not necessary.”
  • “Technology is coming to the legal industry in a big way, and it is coming whether some in the legal community like it or not. The California bar task force recognizes that entrepreneurial lawyers should be the ones leading innovation. This can only occur when law firms have access to capital and access to talent.”
  • “For some reason, lawyers like to think we’re different. That we’re above it all. We’re not, and if we don’t have the resources necessary to build technology — access to capital being number one — our industry will be changed by nonlawyers and/or foreign law firms in ways that we cannot control.”
  • “In order to attract top technology talent into the legal space, law firms will have to offer them the same thing that Amazon, Uber, Netflix and Airbnb did: an equity stake.”

And on the ethics front, this one also caught my eye, for those interested in the professional rules about advertising and marketing: “N.J. Legal Ethics Panel Tackles What’s Off Limits for Search Engine Marketing” —

  • “The Supreme Court’s Advisory Committee on Professional Ethics said in an opinion made public Tuesday that a lawyer may purchase a sponsored search keyword on a competing lawyer’s name. That would show the purchaser’s own law firm website in the results when a person types the competitor’s name in a search engine.”
  • “However, the committee drew the line at another form of sponsored search marketing in which the lawyer pays to insert a hyperlink to his own website on the name of a competing lawyer. That would mean someone who clicked on the competitor’s name in a search result would be diverted to the purchaser’s website instead.”
  • “The first practice is not fraudulent, deceptive or dishonest and is not prejudicial to the administration of justice, the committee said. But the second practice is ‘purposeful conduct intended to deceive the searcher for the other lawyer’s website,’ the committee said.”
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