In case anyone hasn’t been listening carefully, Comment 8 to Model Rule 1.1 requires lawyers to understand not just the risks of technology, but the benefits and the word “benefits” appears first. We have an ethical duty (yes, duty) to understand and leverage the benefits of technology.

Ethics and Benefits

Let’s talk about the notion of benefits. Comment 8 to Model Rule 1.1, is the oft cited source when people preach about risks and technology. But in doing so, they ignore the additional requirement:

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.

Not only does the word benefits appear, but it also actually appears first.

Comment 8 has been adopted in most states and even where it hasn’t been, there seems to be little question that competency these days requires the consideration and use of technology. And to be competent can’t mean wringing our hands over the risks of technology and concluding it shouldn’t be used. Understanding benefits and taking advantage of them is an ethical requirement.

And the word benefits means the positive capabilities of technologies like AI to improve the practice. Things like using technology to do things to efficiently and save costs, using things like AI to enhance client service, using things like data analytics for better insights and outcomes, predicting case outcomes and judicial tendencies, better use of technology in the courtroom to achieve better outcomes for clients, preventative lawyering. I could go on and on.

But that message gets lost, particularly at legal tech conferences.

Legal Tech Conference Speak

A friend of mine was a recent speaker at a legal AI conference. Speaking last, my friend noticed that every speaker focused on the risks and dangers of using AI. You know the drill: hallucinations, loss of confidentiality, the need for accurate prompts, the need to check the outputs, etc. My friend took a different tack and talked about what AI could do. How it could be used to be more efficient, precise, and accurate in particular practice areas.

I was the first speaker at a recent legal AI conference as well. I spoke about ethics and AI; toward the end of my talk, I realized I also had not spent enough time talking about our ethical duty to understand and leverage the benefits.

Of course, I was followed by a slew of people doing just what the speakers at my friend’s conference did: talking about the problems, the risks, the needs for cautions. Some were vendors who seemed to be saying something like “Lawyers don’t try this at home. AI should only be used in conjunction with a licensed professional.”

Of course, the vendors weren’t licensed professionals in the true sense. But the message was clear, lawyers shouldn’t use AI without the help of someone who really knows what they are doing.

But that message directly leads lawyers to shy away from such a “dangerous” tool.

The Only Thing You Need to Know Is That There’s Not That Much to Know

And it’s wrong. I have another friend who is not a lawyer but who hires them. She uses ChatGPT extensively for all sorts of things. When I told her about my conference, she scoffed: “The only thing you need to know about AI is there is really not that much to know.” She meant of course that us lawyers tend to get all balled up in how many angels (or risks) can dance on the head of a pin and we don’t just roll up our sleeves and use the product, learning as we go.

Get A Grip

Get a grip. The truth is there are only a couple of things you need to know about using AI:

It makes mistakes. Check the results.
Don’t put client confidences in it.

I’m amazed how we make this so complicated. No one in their right mind would put their client confidences in a Google search. No lawyer in their right mind would take the websites that Google provides in response to a search and use them without reviewing the site.

Yes, there have been numerous instances of lawyers taking the results of prompts and not checking the cites, to later get embarrassed. Yes, it shouldn’t happen. Yes, they were dumb.

But how many examples are there of dumb lawyers commingling funds, using client funds for their own expense, violating conflict of interest standards, missing deadlines, and plain incompetence out there? Happens every day but we don’t say using bank accounts is too risky because a dumb lawyer might commingle funds. It’s the missed cites that get all the attention.

Here’s a good example: a recent AP article reported a French data scientist and lawyer has catalogued at least 490 court fillings in the past six months with hallucinations. But buried in the article was the fact that the majority of instances occurred in cases where the plaintiffs were representing themselves instead of being represented by lawyers. That fact got lost in the headlines.

Bottom line, we can’t let the fact that there are dumb lawyers making stupid mistakes blind us to the benefits that AI brings.

How to Get There

Another point: don’t get hung up on thinking the tools are too hard and complicated to use as some would have you believe. Start by using the tools for anything and everything. Start with personal and inconsequential stuff. Then build. It’s on-the-job training.

You don’t learn to play the guitar by reading all the risks of an electric guitar. You learn by playing it. Or trying to until you become competent. You didn’t learn how to try a case well by reading about it. You learned by trying cases. By making mistakes.

It’s All About Our Clients

And make no mistake, when we talk about our ethical duty of competency that requires understanding, being aware of, and taking advantage of technology, we are also talking about something else: our ethical duty to benefit our clients, not just ourselves. We are talking about things like making our fees reasonable (Model Rule 1.5), rendering candid and professional advice (Model Rule 2.1), keeping our clients informed (Model Rule 1.4), acting with reasonable diligence and dedication to the interests of our clients (Model Rule 1.3), and serving our clients best interests.

If you can use AI to get to a better legal answer to a thorny litigation question in a fraction of the time and more timely advise your client of the accompanying risks and exposure, your client is the beneficiary. And it is — or should be — all about them.

So, What’s the Point Really?

Yes, we have to know the risks. But we can’t be blind to the benefits of things like AI. Getting to these benefits doesn’t require a host of consultants or years of study and handwringing. It means getting a rudimentary knowledge of the tools and then using the tools to wrap your arms around how they can benefit you in your practice. That takes a little time and effort, but the benefits can be worth it.

And just remember two things: don’t put client confidences in a prompt and check cites. That’s pretty much all you need to know.

Now let’s get to work. Open up an AI tool and ask it a question. Ask it to do something for you. You might be amazed what you will get.

Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.

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