A Multilayered Duty of Competence

The North Carolina State Bar’s Rules of Professional Conduct mandates attorneys in this state to uphold a duty of competence in their practice. Under Rule 1.1, competence in representation “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary.” Competent and zealous representation for an attorney’s clients is of highest priority. Monitoring changes in case law and the broader legal landscape is imperative to maintain this knowledge and skill.

Competent representation also means an attorney must look at emerging technologies which can be used in their practice. Specifically, Comment 8 to Rule 1.1 states: “[t]o 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 the technology relevant to the lawyer’s practice, . . .”

The specific attention to technology within the rule speaks to two points: (1) that technology is pervasive in today’s world and (2) technology’s impact on the practice of law will continue to evolve. How do we reconcile potential implications of its use with our ethical obligations as attorneys?

How Should I Evaluate Whether to Use Technologies such as Artificial Intelligence in my Practice?

Modern technological advancements have staying power that is evident across industries and across the globe, and the law has not been spared. Emerging technologies are evolving at a rapid rate, and data has never been more commercially available. Sophisticated technologies like Artificial Intelligence (“AI”) are inching closer to reflecting human rationality through automation and predictive services.

AI’s impact on the practice of law has become an increasingly hot topic in the legal community. The American Bar Association (ABA) adopted a resolution in the Fall of 2019, calling for industry-wide inquiry into AI usage in the legal context, emphasizing the importance of its “trustworthy adoption.” The overview of the resolution itself reads: “[w]e are clearly on the cusp of an AI revolution. But what does all this mean . . . ?”

For North Carolina practitioners, Comment 8 requires NC-barred attorneys to assess whether new technologies can assist their legal practice. Assessment should look at both positive and negative implications of use. Emerging technologies have the capacity to positively impact the nature and quality of an attorney’s zealous representation. However, these technologies should not be implemented without thorough consideration of potential risk of harm to clients.

An attorney need not become a technical expert in the technological tool to meet their duty to provide competent representation. But attorneys are expected to have an openness to learn about emerging technologies and their potential impact on their representative client matters. So what technology is available to attorneys?

Technology available to legal practitioners varies depending on one’s practice; corporate attorneys may use due diligence review tools, software to run comparisons to confirm the changes to a prior contract version, or plug-ins for a word processing software that help search for drafting inconsistencies. Litigators may use legal research technologies to search for relevant case law or tools to handle and process e-Discovery requests. Trial lawyers and judges may be evaluating technologies that recommend or make decisions about who is qualified for a loan. Once an attorney identifies the technology that is available, they should assess if it should be used as part of their practice.

The assessment should be technology specific and context specific. As an example, when evaluating the ethical impact of using AI tools, members of the bench have named both reliability of results and transparency into an AI algorithm’s process as chief concerns. In his February 2020 article, Judge Herbert B. Dixon Jr. writes that “[d]istrust can arise if developers are not transparent about the inner workings of their products or cannot explain why the AI came to a specific conclusion.” He continues, “human attorneys are a necessary guardrail to protect the client,” at least for the foreseeable future.

Despite this cautious approach, areas of the law are already benefitting from technology adoption, such as contract review, e-Discovery, and legal research. Technologies in these contexts automate processes with attorneys’ oversight. Technologies like AI do not eliminate the need for human expertise, according to Author Dan Broderick who applies this concept to the field of Automation in Contract Markup. According to Broderick, AI “enables a kind of ideal partnership between human reviewers and machines. The technology progressively learns from the bottom up by ‘observing’ normal attorney behavior and replicating it in similar contexts.” Use of technology to automate processes like these can help save costs for clients and expedite workflow. These processes are not making “decisions” for an attorney so they do not implicate broader ethical implications that may result from lack of transparency or explainability.

Technology’s increasing presence in the law is inevitable. However, legal practitioners should assess before adopting these technologies. Some technologies may raise a concern due to lack of transparency because technologies reach decisions and how they do so is unclear. Those technologies raise issues for attorneys who must balance considerations of efficiency with their professional obligations.

Attorneys are still expected to make use of opportunities to assess whether emerging technologies may impact their representative client matters. As of now, there are many technologies available to legal practitioners that vary in usefulness depending on one’s practice.

In assessing whether to use these available technologies, attorneys should look at both technology and context-specific factors. Ultimately, humans are still needed to act as a “guardrail” against potential negative impacts.

North Carolina’s Rules of Professional Conduct have evolved to encompass this emerging field, and North Carolina attorneys must continue to be curious about these technologies and their application to their practice.

December 9, 2020/by Privacy and Data Security