Does AI Really Help?
“AI allows quick and effective issue identification, document review and assessment for relevance and privilege determinations, chronology building, and summarizing testimony and other large volumes of information,” explain Francelina M. Perdomo Klukosky, New York, NY and Matthew D. Kohel, Baltimore, MD, Co-Chairs of the AI Subcommittee of the Litigation Section’s Intellectual Property Litigation Committee.
Despite these benefits, there are drawbacks. “I would be concerned about using AI to prepare documents that necessarily involve account numbers and balances that are meant to be kept confidential and not publicly filed with the court, such as demand letters or settlement agreements, and I have similar concerns about potential HIPAA violations,” remarks Naomi M. Berry, Miami, FL, Co-Chair of the Section’s Corporate Counsel Committee.
Other Section leaders echo similar sentiments. “AI can deliver significant efficiencies to clients with proper guardrails, but too many jump in feet first without evaluating the issues,” observes Emily Westridge Black, Austin, TX, Co-Chair of the Section’s Privacy & Data Security Committee. “Part of the problem is asking AI to check itself, so if you get unsatisfactory answers, you need to have checks outside the loop instead of relying on AI to assure correctness,” she cautions.
Section leaders provide cautions regarding the use of AI, across a broad range of issues, even before the creation of an attorney-client relationship, and encourage transparency with clients. “The use of AI tools for client intake could lead to the creation of an attorney-client relationship without the lawyer’s knowledge or the GenAI tool using abusive, discriminatory, or otherwise inappropriate language,” Klukosky and Kohel warn. “Use of self-learning generative AI tools trained on client data raises the possibility that confidential client information may be stored within the program and revealed in response to inquiries by third parties,” they add.
In that regard, the opinion directs lawyers to understand an applicable AI program’s policies on data retention, data sharing, and self-learning, and consider obtaining the affected client’s informed consent prior to utilizing a third-party generative AI program. “Lawyers should be transparent with how bills are derived and have an upfront conversation with clients about why and how AI is being used and what portion of the bill is attributable to that use,” notes Black.
Will Generative AI Impair Professional Skills Development?
Generative AI presents a new landscape with new challenges for young lawyers. “How do you get analytic chops without doing the grunt work?” offers Black. “We will find ways to deal with it as we did in transition from book research to online research and paper to paperless, but we will need to be intentional about assisting young lawyers,” she suggests. “New as of yet unidentified skills will be learned, as was the case with e-discovery, and a new skill set will develop that will permit developing and querying AI, creating a new way people can add value,” concludes Black.