CLE Relay | Emerging Ethical Risks with AI · 2020-06-18 · education and comply with all continuing legal education requirements to which the lawyer is subject. ABA August 2019

Emerging Ethical Risks with AI

Zulaikha H. Master, Amit B. Patel, Kate T. Spelman and John F. Ward, Jr.

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Agenda

What is AI?

What rules of lawyer professional conduct might AI implicate?

What ethical risks might current or emerging AI tools present?

Core law practice tools?

Business AI tools?

Questions!

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What is AI?

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What is AI?

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What is AI?

Poll

Have you used any form of AI (lawyer-specific or otherwise) today?

a. Yes

b. No

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What is AI?

Artificial intelligence (AI) is the simulation of human intelligence in computer systems, which are capable of performing tasks that require human intelligence (decision making):

Rules-based Fixed knowledge in the form of rules (“if X, then Y”) input by programmer

Keyword SPAM filters

Adaptive/Learning Model updates with experience

Most modern SPAM filters (e.g., Gmail)

Predictive text on smartphones

Natural language searching

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Rules of Professional Conduct

ABA Model Rule 1.1 – Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

See also Comments.

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ABA Model Rule 1.3 – Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

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ABA Model Rule 1.6 – Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.

* * *

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

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ABA Model Rule 3.3 – Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. . . .

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ABA Model Rule 3.4 – Fairness to Opposing Party & Counsel

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

* * *

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

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ABA Model Rule 5.3 – Responsibilities Regarding Nonlawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.

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ABA Model Rule 8.4 – Professional Misconduct

It is professional misconduct for a lawyer to:

* * *

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

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Poll

Do the model rules require lawyers to have and maintain some level of knowledge about AI and its attendant risks?

a. Yes

b. No

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ABA Model Rule 1.1 Comment 8 – Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

ABA August 2019 Resolution

“[U]rges courts and lawyers to address the emerging ethical and legal issues related to the usage of artificial intelligence (‘AI’) in the practice of law.”

Legal Practice AI Tools

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Contract Analysis

Currently a popular growth area; many startups developing contract tools

Purport to help organizations manage and navigate through their many contracts

Help eliminate need for complete top-to-bottom review of contracts to address, e.g., new regulatory developments, and instead automatically highlight key relevant provisions

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Drafting/Composition

Less mature than contract analysis tools

User provides certain criteria (e.g., substantive area of law; particular legal issues to address), and tool outputs a draft document

Current limitations?

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Litigation Analytics

Granular court filing data (including venue, judge, type of case, type of filing, ruling, verdict) used to predict outcomes

Tools right now generally provide detailed data, leaving it up to lawyers to make predictions based on that data, e.g.: Judge X has denied 95% of the motions to dismiss in copyright cases

before her

Antitrust cases in the Y District tend to go to trial three years after the filing of the complaint

Not at the point where the tools themselves widely provide predictions; that will likely come next

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Litigation Analytics cont’d

Some similar tools used by courts themselves in criminal context, to assess recidivism, assess probable cause, make bail determinations, etc.

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Document Review

Well-established tools used in electronic discovery and due diligence settings:

Relativity Analytics

Brainspace

Other proprietary analytics

Supervised Machine Learning:

Human lawyers provide a training (or “seed”) set of relevant and irrelevant example documents, and intelligence gathered from that is applied to a larger collection of documents

Unsupervised Learning:

Computer system ingests the data and automatically finds patterns and relationships in the dataset by creating clusters for the lawyer to identify relevance

Often touted as being much less expensive than traditional “eyes on each document” review, and with better accuracy

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Legal Research

Natural language searching gradually replacing traditional keyword searches on major commercial research platforms

Likely will evolve to include “chatbot”-type functionality

“Does Florida law provide a presumption of irreparable harm when a restrictive covenant is breached?”

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Poll

Which legal practice AI tools have you used? (select all that apply)

a. Contract Analysis

b. Litigation Analytics

c. Document Review

d. Legal Research

e. Drafting/Composition

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Hypothetical No. 1

You are an in-house lawyer for a business that regularly enters, and must keep track of, thousands of contracts, most of which pre-date your tenure or that the company inherited from acquisitions. Because you are charged with knowing the salient facts of each contract – termination and renewal dates, indemnification provisions, existence of arbitration provisions, governing law, etc. – you employ a commercially available AI tool to determine and organize the answers to all of these questions (and you do this by scanning and inputting each contract into the third-party provider’s AI-driven database). Within days, you have a report providing detailed answers to each of the key points you require for each company contract.

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Poll

Should you rely on that report in giving specific advice to your client/company about each particular contract?

a. Yes, as you have been assured by the third-party provider that its AI-based contract analysis is the best tool on the market.

b. Yes, but only if you first seek assurance from the third-party provider that its AI-based tool is generally accurate.

c. Yes, but only if you first double-check a particular contract through manual means before conveying advice/information to your client about that particular contract.

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Poll

Which other ethical duties might this tool implicate? (select all that apply)

a. Confidentiality

b. Avoidance of Bias

c. Candor

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Hypothetical No. 2

Your client asks you to “predict” the outcome of its planned litigation: “If we file this complaint, what are the chances of winning?” You employ a commercially available outcome predictor tool, inputting various points about your client’s planned litigation, including claims and venue. The tool outputs a 94.63423% likelihood of success. Impressed with the tool’s precision, you convey the information to your client, who is thrilled and urges you to file the complaint as soon as possible.

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Poll

Which ethical duties might this tool implicate? (select all that apply)

a. Confidentiality

b. Diligence

c. Candor

d. Supervision

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Hypothetical No. 3

Your client is a defendant in a complex class action related to one of its advertising campaigns that spans several years. The plaintiffs serve document requests that appear to implicate a large number of potential custodians’ documents from over those several years. To produce documents as efficiently as possible, you propose using “technology-assisted review” or “predictive coding” to your client’s in-house counsel, and counsel enthusiastically accepts your proposal without much further discussion. Weeks after the document production is complete, the plaintiffs assert that responsive documents were improperly withheld. You reject that assertion and the plaintiffs file a motion to compel. In the opposition brief, and accompanying declaration, you state that your client has diligently reviewed and produced all responsive documents within its possession, but the plaintiffs respond citing a copy of a custodian’s email, which they obtained from another source.

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Poll

In making these representations to the court, did you potentially breach any ethical rules?

a. No, because you caused to your client to use an efficient, AI-based discovery tool, your assertion to the court about production completeness was undoubtedly correct.

b. No, because you previously had advised your client that the AI-based discovery tool might not catch every single responsive document.

c. Likely, yes, because you never informed plaintiffs or the court about the manner and means in which you caused your client’s documents to be searched.

Business AI Tools

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Business AI Tools

What are an attorney’s ethical obligations with respect to advising and counseling a business on its use of AI tools that make decisions assessing or affecting consumers, or employees/potential employees?

Regulators have expressed growing concern regarding business’s use of decision-making algorithms.

There are different legal implications for business AI tools depending on their particular application(s).

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Business AI Tools

Banking/Fraud Detection

Over a third of US companies rely on AI tools to detect fraud.

Tools rely on vast amounts of data to discern activity patterns that tend to indicate fraud.

Specific applications in banking/financial sector, e.g., to determine a borrower’s creditworthiness or eligibility for certain programs.

Corporate legal departments may rely on similar tools to analyze service provider (e.g., legal) invoices.

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Business AI Tools

Hiring and Human Resources

Tools assess potential candidates for a position and predict the likelihood of success in that position, based on criteria the employer specifies

Inputs to the tool might include credentials on resume, interview question responses both in substance and how provided or facial movements

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Business AI Tools

Marketing and Advertising

Wide range of tools geared towards predicting consumer behavior based on any number of inputs

Targeted advertising (placing the right kinds of ads in front of the right kinds of people)

Chatbots, e.g., for first-level customer service functions

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Business AI Tools

Marketing and Advertising cont’d

Ad generation??

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Business AI Tools

Hypothetical No. 4

Your company’s HR manager is interested in using a new hiring tool created by a company called HireYou, which analyzes applicants’ facial movements, word choice and speaking voice, in addition to their written application materials, before ranking them against other applicants based on an automatically generated “employability” score. The applicant data would be housed solely on HireYou-controlled computer systems for analysis. The HR manager would like your assessment of any potential regulatory concerns arising from the implementation of the HireYoutechnology, which would help your company tremendously with respect to streamlining its hiring process.

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Business AI Tools

Poll

Can you provide competent advice about the regulatory compliance of the HireYou tool without an engineering-level understanding of how the tool works?

a. An engineering-level understanding is required.

b. A general understanding is sufficient.

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Business AI Tools

Poll

Which do you think is the most important issue to consider in providing competent legal advice regarding the company’s use of the HireYou tool?

a. Data privacy

b. Potential biases

c. Effectiveness

Key Takeaways

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Key Takeaways

Relevant ABA Model Rules

AI applications used in legal practice

Growing use of AI applications in commerce generally

Awareness, competence, continued attention to evolving technological landscape

Questions?

Documents

CLE Relay | Emerging Ethical Risks with AI · 2020-06-18 · education and comply with all continuing legal education requirements to which the lawyer is subject. ABA August 2019