| On April 2, 2024, the New York State Bar Association’s (“NYSBA”) Task Force on Artificial Intelligence released a report concerning the use of artificial intelligence (“AI”) in the legal profession (“Report”). |
 Markus Winkler, Unsplash |
New York joins select states, such as Florida and California, whose bar associations have published recommendations on the use of AI. The nearly 90-page Report examined the (1) evolution of AI and generative AI; (2) benefits and risks of AI and generative AI use; (3) impact of the technology on the legal profession; (4) legislative overview and recommendations; and (5) proposed guidelines. To date, the Report is the most comprehensive document provided by a state bar association regarding AI use.
The Report summarizes four recommendations for adoption by the NYSBA:
- Adopt Guidelines: The Task Force recommends that NYSBA adopt the AI/Generative AI guidelines outlined in [the] report and commission a standing section or committee to oversee periodic updates to those guidelines.
- Focus on Education: The Task Force recommends that NYSBA prioritize education over legislation, focusing on educating judges, lawyers, law students and regulators to understand the technology so that they can apply existing law to regulate it.
- Identify Risks for New Regulation: Legislatures should identify risks associated with the technology that are not addressed by existing laws, which will likely involve extensive hearings and studies involving experts in AI. Legislatures should identify whether AI should be regulated in a comprehensive approach or an industry-by-industry approach.
- Examine the Function of the Law in AI Governance: The rapid advancement of AI prompts us to examine the function of the law as a governance tool. Some of the key functions of the law in the AI context are: (i) expressing social values and reinforcing fundamental principles; (ii) protecting against risks to such values and principles; and (iii) stabilizing society and increasing legal certainty.
Advantages and Disadvantages of AI Use
While the Report recognizes the broad benefits of the use of AI – such as the performance of repetitive tasks, reduction of human error, augmentation of human intelligence, and the potential to facilitate greater access to justice – it also acknowledges the drawbacks of utilizing AI. The Report highlights that the use of AI poses invasions of privacy issues, cybersecurity risks, misinformation, and job displacement. Specific to the legal industry, the Report notes that
AI may produce case law “hallucinations” (incorrect/unreliable information produced by AI) and the admission of Deepfakes (images of fake events) as a form of evidence.
The Report’s Legislative Overview Regarding AI Use
The Report also provides a summary of proposed and passed legislation regarding AI. The Report states that in New York there are no statewide laws or regulations regarding the commercial use of AI. As of July 5, 2023, however, the State has enacted New York City’s Automated Employment Decision Tool (AEDT) law, Local Law 144 of 2021, which requires New York City employers utilizing AI and other machine-learning technology as part of their hiring process to annually audit their recruitment technology. The results of the audit performed by a third party must be available on the employer’s website. Failure to comply may result in fines with a floor of $500.
Rules of Professional Conduct Implicated by AI Use
In addition, the Report provides a table that summarizes the various rules of professional conduct implicated by the use of AI and the corresponding guidance in complying with the rules. Particularly, in compliance with Rule 1.2 requiring that “[a] lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued,”the Task Force suggests that lawyers disclose to clients that AI could be used in their cases. The Report also offers a sample statement that may be included in a client engagement letter:
Use of Generative AI: While representing you, we may use generative AI tools and technology to assist in legal research, document drafting and other legal tasks. This technology enables us to provide more efficient and cost-effective legal services. However, it is important to note that while generative AI can enhance our work, it is not a substitute for the expertise and judgment of our attorneys. We will exercise professional judgment in using AI-generated content and ensure its accuracy and appropriateness in your specific case.
Most notably, in compliance with Rule 1.5 requiring that “[a] lawyer shall not make an agreement for, charge, or collect an excessive or illegal fee or expense,” the Task Force also suggests that “if [AI] would make [legal] work on behalf of a client substantially more efficient… [and the lawyer] add[s] a “surcharge” (i.e., an amount above actual cost) when using specific [AI], then [the lawyer] should clearly state such charges in [a client] engagement letter.”
Takeaway
In conclusion, as the Report highlights, “AI can improve many aspects of society but also has the potential to cause harm if left unchecked.” As such, the Report serves as a crucial and beneficial resource in navigating the use of AI within the permitted bounds of the legal profession.
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