Q. I am getting ready to hire a divorce lawyer and got a fee agreement which gives me pause. The fee agreement I’ve been asked to sign has a few clauses that feel like warnings to me. It says essentially that the firm is up to date on the latest technology including use of artificial intelligence. It asks me to acknowledge and consent to their regular use of AI as a means to assist in the practice of law including research and writing.
How do I know my information is safe if my lawyers put it in some sort of AI platform? Is AI a common thing used by lawyers and if so, how do I protect myself and privacy?
A. I can only speak to the basics of AI. Most programs such as Outlook for email or case management programs use AI and we don’t even realize it. Think about sending a text and your phone auto populates what it thinks your next word will be. There is a difference between what those programs are doing and things like Chat GPT, which is becoming more widely used by lawyers.
Using AI in the sense of putting your personal information into some program to generate a draft document or putting personal information into a program and asking it to generate a summary requires client knowledge and consent. The American Bar Association has issued ethics guidance on how lawyers use AI. Lawyers need to keep their clients informed of how they will use AI and get their consent to do so. Burying consent in a client fee agreement was specifically not recommended by a recent ethical opinion I read.
While AI can be used to streamline cases, save time and thus money for the clients, there are many potential pitfalls. Lawyers have an ethical obligation to be oversee work anyone does in connection with our client’s cases. It is easy to oversee a paralegal or junior associate. It is hard to envision overseeing an AI program when we truly have no idea how to think like a machine or review their work product. Lawyers have used AI to generate legal briefs on which they have relied only to learn that the AI program created and cited to non-existent cases which resulted in the lawyers being sanctioned.
Before engaging your lawyer, ask exactly what AI they use and how. Then decide if they are really the firm for you.
Email questions to whickey@brickjones.com
