Chat with us, powered by LiveChat After you choose the scholarly resource (from among the Week 1 or Week 2 required readings), download it into a Microsoft Word document. Locate the elements by annotating with the 'high | Wridemy

After you choose the scholarly resource (from among the Week 1 or Week 2 required readings), download it into a Microsoft Word document. Locate the elements by annotating with the ‘high

After you choose the scholarly resource (from among the Week 1 or Week 2 required readings), download it into a Microsoft Word document. Locate the elements by annotating with the ‘high

I attached the article and an example as well.

Instructions

This assignment requires that you select one of the mandatory reading resources assigned for either Week 1 or Week 2 and deconstruct it into its primary elements, namely:

  • The Research Question;
  • The Thesis;
  • The Claims or argument;
  • The Evidence or supporting facts; and,
  • The Conclusion(s)

1. After you choose the scholarly resource (from among the Week 1 or Week 2 required readings), download it into a Microsoft Word document. Locate the elements by annotating with the "highlight" tool and/or using the Comments tool (available on the "Review" tab on the top of the page) to provide remarks in the margins.

2. Briefly critique the article by identifying both its strong elements and those that were less compelling.

3. Finally, assess this resource's utility to you after you have broken it down through this deconstruction process and understand the argument and facts that the author used to support his/her claims. You may write at the bottom of the article itself or provide your answers in a separate Word document. Your critique should be no longer than a single double-spaced written page.

Please provide a complete citation for your chosen resource in either Bluebook or APA format (do not mix the two styles).THIS EXERCISE WILL PREPARE YOU TO WRITE YOUR OWN PAPERS AND ARTICLES!THERE WILL BE AN EXAMPLE IN THE CONTENT SECTION.When you have completed your exercise, please title it NameW3.doc and upload it in the Assignments module.

Make sure to look at this example: Corporate Warriors. (attached)

Electronic copy available at: https://ssrn.com/abstract=3097985

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Happy Birthday Siri! Dialing in Legal Ethics for Artificial Intelligence, Smart Phones, and Real Time Lawyers

By Jan L. Jacobowitz and Justin Ortiz*

“We’re working on having lawyers teach the computer to think like a lawyer. That would be a huge step for humanity . . . . With legal tech, there will be new jobs, and we can embrace a very happy future in the law. This is a new frontier.” – Andrew Arruda1

“There is no threshold that makes us greater than the sum of our parts, no inflection point at which we become fully alive. We can't define consciousness because consciousness does not exist. Humans fancy that there's something special about the way we perceive the world, and yet we live in loops as tight and as closed as the [AI] hosts do, seldom questioning our choices, content, for the most part, to be told what to do next.” – Dr. Robert Ford, Westworld2

“I am very honored and proud of this unique distinction. This is historical to be the first robot in the world to be recognized with a citizenship.” – Sophia, the first robot to be granted citizenship in Saudi Arabia3

Introduction (Abstract)

If we ask six-year old Siri4 to create a guest list for a party to celebrate the tenth anniversary of the iPhone,5 Siri might include invites (or e-vites) for Alexa, Bixby, Cortana, and

* Jan L. Jacobowitz is a Lecturer in Law and Director of the Professional Responsibility & Ethics Program (PREP) at the University of Miami School of Law. Justin Ortiz is a Miami Law and PREP alumnus who is currently practicing law in Kansas City, Missouri. The authors are tremendously grateful to PREP Fellow and research assistant extraordinaire, Nicole Chipi for her valuable input and assistance with the writing of this article. 1 Julie Sobowale, How Artificial Intelligence is Transforming the Legal Profession, ABA J. (April 2016), http://www.abajournal.com/magazine/article/how_artificial_intelligence_is_transforming_the_l egal_profession. 2 All Quotes by Dr. Robert Ford, QUOTE CATALOG (Dec. 5, 2016), https://quotecatalog.com/communicator/dr-robert-ford/. 3 Anthony Cuthbertson, Tokyo: Artificial Intelligence 'Boy' Shibuya Mirai Becomes World's First AI Bot To Be Granted Residency, NEWSWEEK (Nov. 8, 2017, 4:52 AM), http://www.newsweek.com/tokyo-residency-artificial-intelligence-boy-shibuya-mirai-702382. 4 Siri is a Norwegian name which translates to “beautiful woman who leads us to victory.” How Apple’s Siri Got Her Name, WEEK (March 29, 2012). Siri, Inc. was founded in 2007 and the Siri app launched in 2010. Id. Apple, Inc. purchased Siri, Inc. shortly thereafter, Apple introduced Siri with the iPhone 4s on October 4, 2011. See also Luke Dormehl, Today in Apple History: Siri Debuts on iPhone 4s, CULT OF MAC (Oct. 4, 2017, 5:00 AM), https://www.cultofmac.com/447783/today-in-apple-history-siri-makes-its-public-debut-on- iphone-4s/. 5 Dan Grabham, History of the iPhone 2007-2017: A Decade is a Long Time in Smartphones, T3 (Sep. 8, 2017), https //www.t3.com/features/a-brief-history-of-the-iphone.

Electronic copy available at: https://ssrn.com/abstract=3097985

Electronic copy available at: https://ssrn.com/abstract=3097985

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Google’s Assistant. Whether the guests would be able to “mingle” with one another is unclear, but human invitees could communicate with each of Siri’s “smart” technology guests.6

Smart devices and Artificial Intelligence (“AI”) programs have altered the way we live—both in our personal and professional lives. Through these platforms, we can communicate simultaneously with a large number of people located at multiple locations throughout the world.7 We can access both our personal and business emails and files from almost anywhere on the planet.8 Free public WiFi hot-spots are as numerous as the apps that are available for our smart phones.9 We can communicate with technological assistants that perform our tasks and answer our questions. 10 In fact, technology makes it possible for us to conveniently use the same device for personal and professional purposes. But the increased sophistication and convenience of these technologies have also created vulnerabilities for users who fail to learn how the technology functions and to employ reasonable precautions. These vulnerabilities become especially problematic in the practice of law.11

The legal community has confronted the challenge of adapting to technological innovation throughout its history (albeit, generally somewhat behind the technological curve),12 but artificial intelligence and its use in the legal profession is relatively new. While many lawyers use smartphones and virtual assistants, the arrival of new “smart machines” have baffled many in the legal profession.13

6 Scott Rosenberg, Voice Assistants Aren’t So Easy to Fire, WIRED (Oct. 11, 2017, 6:40 AM), https://www.wired.com/story/voice-assistants-arent-so-easy-to-fire/. 7 See Audrey Willis, 6 Ways Social Media Changed the Way We Communicate, HIGHER ED MARKETING J. (Aug. 15, 2017), http://circaedu.com/hemj/how-social-media-changed-the-way- we-communicate/. 8 See Michael Muchmore & Jill Duffy, The Best Cloud Storage and File-Sharing Services of 2017, PCMAG K (July 19, 2017, 1:37 PM), https://www.pcmag.com/roundup/306323/the-best- cloud-storage-providers-and-file-syncing-services. 9 Mari Silbey, US Cable WiFi Hotspots Near 17 Million, LIGHT READING (July 6, 2016), http://www.lightreading.com/cable/cable-wi-fi/us-cable-wifi-hotspots-near-17-million/d/d- id/724584. 10 See generally, Sharon D. Nelson & John W. Simek, Are Alexa and Her Friends Safe to Use in Your Law Office? The Pros and Cons of Personal Assistants, SENSEI ENTERPRISES, INC. (2017), https://senseient.com/wp-content/uploads/Alexa-and-other-PDAs.pdf. 11 See id. 12 See Jan L Jacobowitz & Danielle Singer, The Social Media Frontier: Exploring A New Mandate for Competence in the Practice of Law 68 U. MIAMI L. REV. 445, 447-454 (2014); see also Jane Croft, Artificial Intelligence Disrupting The Business Of Law, FIN. TIMES (Oct. 5, 2016), https://www.ft.com/content/5d96dd72-83eb-11e6-8897-2359a58ac7a5 (“Its traditional aversion to risk has meant the legal profession has not been in the vanguard of new technology.”). 13 Robert Ambrogi, Fear Not, Lawyers, AI Is Not Your Enemy, ABOVE THE LAW (Oct. 30, 2017 3:00 PM), https://abovethelaw.com/2017/10/fear-not-lawyers-ai-is-not-your-enemy/.

Electronic copy available at: https://ssrn.com/abstract=3097985

Electronic copy available at: https://ssrn.com/abstract=3097985

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ROSS, sometimes referred to as the “robot’ lawyer, was merely a glint in his developers’ eye when Apple gave birth to the iPhone.14 Today, ROSS Intelligence offers AI driven research to legal practitioners.15 A slew of other AI vendors also provide attorneys with legal support services including legal research, contract review, litigation strategy, litigation funding decisions, e-discovery, and jury selection. The use of services provided by these vendors are slowly gaining acceptance in the legal community.16 AI promises increased efficiencies, but strikes fear into those who worry about robot lawyers replacing humans. In fact, automated “bots” like DoNotPay, a bot developed by a British teenager that has “represented” thousands of individuals who have successfully contested their traffic tickets, demonstrate that some of these fears are not unfounded.17

Regardless of whether AI is embraced or feared, the use of AI implicates the Rules of Professional Conduct and a lawyer’s corresponding ethical duties to his client. Whether a lawyer’s use of AI will become tantamount to competent representation remains to be seen, but there is no doubt that the current use of AI has already raised the specter of legal ethics landmines, with issues such as client consent, confidentiality, and supervision already in play.18 Moreover, a debate has ensued as to whether the use of an AI machine or ‘bot’ constitutes the unauthorized practice of law.

This article explores the history of AI and the advantages and potential dangers of using AI to assist with legal research, administrative functions, contract drafting, case evaluation, and litigation strategy. This article also provides an overview of security vulnerabilities attorneys should be aware of and the precautions that they should employ when using their smartphones (in both their personal and professional lives) in order to adequately protect confidential information.19 Finally, this article concludes that lawyers who fail to explore the ethical use of AI in their practices may find themselves at a professional disadvantage and in dire ethical straits.20

14 ROSS Intelligence Gains $8.7m in Major Series A Funding, ARTIFICIAL LAWYER (Oct. 11, 2017), https://www.artificiallawyer.com/2017/10/11/ross-intelligence-gains-8-7m-in-major- series-a-funding/. 15 Id. 16 See Matthew L. Willens, How Artificial Intelligence is and Will Change the Practice of Law, 21ST CENTURY TECH (May 2, 2017), http://www.21stcentech.com/artificial-intelligence-change- practice-law/; see also Sobowale, supra note 1. 17 Alvaro Dominguez, Rise of the Robolawyers: How Legal Representation Could Come to Resemble Turbotax, ATLANTIC (April 2017), https://www.theatlantic.com/magazine/archive/2017/04/rise-of-the-robolawyers/517794/. 18 See Wendy Wen Yu Chang, Competence: What Are the Ethical Implications of Artificial Intelligence Use in Legal Practice?, 33 LAW. MAN. PROF. CONDUCT 284 (May 17, 2017) [hereinafter ETHICAL IMPLICATIONS]. 19 Throughout the article various companies and programs are referenced as examples of available technology. These companies are mentioned solely to provide a reflection of the types of technology available at the time of the writing of this article. The authors’ mention of a company is in no way an endorsement of that company or a particular type of technology. 20 See Nicole Black, Artificial Intelligence Is Already Impacting Legal Practice, LEGAL IT PROF. (May 26, 2017) https://www.legalitprofessionals.com/legal-it-columns/118-niki-black/9769- artificial-intelligence-is-already-impacting-legal-practice (“Mark my words: AI will

Electronic copy available at: https://ssrn.com/abstract=3097985

Electronic copy available at: https://ssrn.com/abstract=3097985

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The first part of this article defines the brave new world of AI and how it both directly and indirectly impacts the practice of law. Part two explores legal ethics considerations when selecting and using AI vendors and virtual assistants. Part three outlines technology risks and potential solutions for lawyers who seek to embrace smart phone technology while complying with legal ethics obligations. The article concludes with an optimistic eye toward the future of the legal profession.

I. Artificial Intelligence Defined

In 1956, James McCarthy, an assistant professor of mathematics at Dartmouth, coined

the term artificial intelligence when he established a summer symposium dedicated to the burgeoning field. 21 When applying for funding for the symposium, he described artificial intelligence in the following manner:

The study is to proceed on the basis of the conjecture that every aspect of learning or any other feature of intelligence can in principle be so precisely described that a machine can be made to simulate it. An attempt will be made to find how to make machines use language, form abstractions and concepts, solve kinds of problems now reserved for humans, and improve themselves.22

The kind of learning described by McCarthy requires more than just logical reasoning— experience, training, and practice comprise necessary variables.23 Smart machines employ AI programming to extract patterns from data rather than simply storing and accessing data. While most thought leaders agree that the term AI connotes a machine that can “learn” (i.e. Watson’s famous jeopardy triumph),24 it is worth noting that scientists, philosophers, futurists, and others disagree as to the definition of intelligence, the definition of consciousness, the speed at which technology may deliver super intelligent machines, and whether those machines will be the next species to rule the planet.25

In fact, there are widespread ethical concerns about the development of artificial intelligence that have little to do with legal ethics. 26 Renowned Swedish-American cosmologist Max Tegmark refers to the artificial intelligence debate as “the most important conversation of

undoubtedly change the legal profession. You can either resist its impact to your detriment, or take steps to acclimate and use it to your advantage. The choice is yours.”). 21 JERRY KAPLAN, ARTIFICIAL INTELLIGENCE: WHAT EVERYONE NEEDS TO KNOW 13 (2016). 22 Id. 23 Id. at 27. 24 See Engadget, IBM's Watson Supercomputer Destroys Humans in Jeopardy, YOUTUBE (Jan. 13, 2011), https://www.youtube.com/watch?v=WFR3lOm_xhE; see also, Lauren J. Young, What Has IBM Watson Been Up to Since Winning Jeopardy 5 Years Ago?, INVERSE (April 5, 2016), https://www.inverse.com/article/13630-what-has-ibm-watson-been-up-to-since-winning- jeopardy-5-years-ago. 25 MAX TEGMARK, LIFE 3.0: BEING HUMAN IN THE AGE OF ARTIFICIAL INTELLIGENCE 38-55 (2017); see also KAPLAN, supra note 21, at 67-86. 26 See TEGMARK, supra note 25, at 22.

Electronic copy available at: https://ssrn.com/abstract=3097985

Electronic copy available at: https://ssrn.com/abstract=3097985

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our lifetime.”27 Tegmark writes that “[t]he questions raised by AI aren’t merely intellectually fascinating; they are morally crucial, because our choices can potentially affect the entire future of life.”28

Some of the issues arising from the “greatest conversation” necessarily implicate the legal profession because of the pervasive role of the law in society. Among the more nuanced questions raised are whether machines should have legal rights and liabilities similar to those of corporations,29 whether an AI program can commit a crime, whether “robo-judges” would render more objective rulings and therefore create greater equality in society, whether AI could more efficiently create legislation, and whether updates to the law could be streamed immediately to relevant machines (i.e., automatically updating speed limits and other traffic laws to a self-driving car.) 30 While these issues are no doubt on the horizon,31 today’s lawyers need to confront the “beginning” of artificial intelligence’s “invasion”32 by considering the ethical issues raised by the AI programs currently available to the legal profession.33

Analysis of the current legal ethics considerations requires a working definition of AI. Wendy Wen Yu Chang’s definition lays a solid foundation:

27 Id. 28 Id. 29 See Cuthbertson, supra note 3. Sophia, a robot, was recently granted citizenship in Saudi Arabia and Mirai, a seven year old bot, has been given residency in Japan. Id. 30 See KAPLAN, supra note 21, at 89-105. 31 See Black, supra note 20. Nicole Black’s discussion of a Deloitte Study includes not only projections of the automation of legal sector jobs over the next 20 years, but also Richard Troman’s fictional description of the life of future lawyers, which begins with “an attorney arriving to work in a driverless vehicle and being granted access to his firm’s building after facial recognition technology is employed. Next, he enters a mostly empty office, since most employees work remotely from home.” Id. 32 See Nadaline Webster, How Many Lawyers Are Using Artificial Intelligence Right Now?, TRADEMARKNOW (June 9, 2017), https://www.trademarknow.com/blog/lawyers-artificial- intelligence. Webster discusses the results of management consultant firm Altman Weil’s 9th annual report titled “Law Firms in Transition.” Of 386 participating law firms “7.5% said that they were already using tools involving AI. Another 28.8% are researching options and 37.8% are familiar with the area but haven't yet taken any steps. Perhaps the most surprising finding is that just over one quarter of firms (25.9%) were not familiar with any developments in this area.” Id. 33 Though beyond the scope of this article, one such ethical dilemma is raised by the use of AI to assist judges in setting bail and deciding whether to grant parole. See Dominguez, supra note 17. As reported by Dominguez, compas, the software used to assist with these calculations, uses responses to over 100 survey style questions (addressing biographical data such as the defendant’s gender, age, criminal history, and personal relationships) to predict whether or not he or she likely to re-offend or is a flight risk. Id. Northpointe, the company that created the software, has refused to make its algorithm public, effectively preventing defense attorneys from being able to bring informed challenges to judges’ decisions. Id. More troubling still is the fact that a study by ProPublica found that the software appears to employ a bias against black defendants. Id.

Electronic copy available at: https://ssrn.com/abstract=3097985

Electronic copy available at: https://ssrn.com/abstract=3097985

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Broadly, AI is the ability of a machine to perform what normally can be done by the human mind. AI seeks to use an automated computer-based means to process and analyze large amounts of data and reach rational conclusions–the same way the human mind does.34

No doubt, James McCarthy would appreciate the evolution of his 1956 definition that

expressed AI as a possibility to the current definition that describes AI as a statement of fact. As noted by Chang, AI is more than data processing; it is the ability of a machine to learn from recognizing patterns in the data. Andrew Arruda, the CEO of ROSS Intelligence, defines AI using four categories: machine learning, natural language processing, vision, and speech. 35 His descriptions provide further insight:

Machine learning describes a system that can take data points, process them to improve performance at completing a task, and then loop that process to continue doing the task while continuously improving. Natural language processing is when a computer can understand human language. The computer can interpret what a human actually means — deciphering intent and therefore providing more accurate and relevant answers and search results. Vision is the computer having the ability to interpret images, identify them and describe them, which is humans perform automatically. (Think Iphone X’s new facial recognition ability) Speech is a system like Siri that can speak and interpret oral language, so you can have a back-and-forth interaction.36

These definitions provide context through which one can better understand the current offerings of AI legal service providers. For example, ROSS, referred to as IBM’s Watson’s “son” by legal tech experts Sharon Nelson and John Simek, is a legal research service.37 ROSS’s full name is ROSS Intelligence.38 The program continues to advance its legal research and writing skills in the areas of bankruptcy and intellectual property law.39 ROSS understands natural language, so it can be asked a question using normal speech.40 At the time of this writing, at least 10 large law firms have invested in ROSS.41 One attorney has gone so far as to

34 See ETHICAL IMPLICATIONS, supra note 17; see also, Sobowale, supra note 1. 35 See Andrew Arruda, Artificial Intelligence Systems and the Law, PEER TO PEER (Summer 2016), http://www.hsc.edu/Documents/alumni/hscbar/ArrudaROSSIntelligenceAISystemsAndL aw.pdf. 36 Id. 37 See Nelson & Simek, supra note 10. 38 Id. 39 Id. 40 See Sobowale, supra note 1. 41 Id.

Electronic copy available at: https://ssrn.com/abstract=3097985

Electronic copy available at: https://ssrn.com/abstract=3097985

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proclaim ROSS’s legal skills to be indecipherable from those of a young associate.42 Beyond ROSS, there are AI vendors available to assist in drafting patent applications,43 performing due diligence, and analyzing contracts.44 Other AI systems offer assistance with case strategy. 45 Lex Machina spots trends in judge’s rulings, identifies legal strategies of opposing counsel and notes winning arguments. 46 It uses natural language processing to evaluate millions of court decisions to find patterns or trends and refers to its product as “moneyball lawyering.”47 Still other AI systems predict the winner of a case based upon statistical analysis of verdicts in similar cases. 48 One AI company, aptly named Premonition, boasts, “We Know Which Lawyers, Win Which Cases, In Front of Which Judges.”49 In fact, litigation funding companies are looking to AI before they “bet” on the outcome of a lawsuit.50 Silicon Valley’s Legalist invests in a case after its algorithm concludes that a lawyer has high odds of winning the lawsuit.51 Handling a murder trial and need assistance developing a legal strategy? Visit the Jury Lab: a program that scans the faces of mock jurors, providing a lawyer with feedback as to how the jurors “feel”—consciously or otherwise—about a lawyer’s arguments.52 And for the lawyer who is already in the courtroom, the tech company Voltaire recently launched an AI jury selection program.53 There are also companies attempting to automate daily administrative functions such as seamlessly recording billing hours and producing client invoices.54 William Davis asks lawyers to consider the following possibilities:

1. Focus: A partner about to enter a client meeting verbally asks the computer to bring up the last few invoices. The verbal

42 Gina Passarella, Salazar Jackson Enters World of AI With ROSS Intelligence, DAILY BUS. REV. (Nov. 4, 2016), http://www.law.com/dailybusinessreview/almID/1202771616534/. 43 David Hricik, Machine Aided Patent Drafting: A Second Look, PATENTLYO (Aug. 25, 2017), https://patentlyo.com/hricik/2017/08/machine-patent-drafting.html. 44 KIRA, https://kirasystems.com (last visited Dec. 8, 2017). 45 See, e.g., LEX MACHINA, https://lexmachina.com (last visited Dec. 8, 2017). 46 Id. 47 Id. 48 PREMONITION, https://premonition.ai (last visited Dec. 8, 2017). 49 Id. 50 See, e.g., Cromwell Schubarth, Y Combinator Startup Uses Big Data To Invest In Civil Lawsuits, SILICON VALLEY BUS. J. (Aug. 24, 2016, 7:25 AM), https://www.bizjournals.com/sanjose/blog/techflash/2016/08/y-combinator-startup-uses-big- data-to-invest-in.html . 51 Id. 52 The Jury Lab, LLC Brings the Legal Community Game-Changing Technology, NEWSWIRE (updated June 10, 2017), https://www.newswire.com/news/the-jury-lab-llc-has-partnered-with- affectiva-emotion-ai-to-bring-the-19157468. 53 See Willens, supra note 16, at 3. 54 Id.

Electronic copy available at: https://ssrn.com/abstract=3097985

Electronic copy available at: https://ssrn.com/abstract=3097985

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interface saves the attorney what would normally require several, rather distracting, navigational clicks. He or she is now focused on what needs to be done rather than searching for what needs to be done. 2. Expenses: As a lawyer closes the door to an Uber ride that dropped him or her off at the client site, an AI application scans the attorney’s inbox for the receipt and automatically enters it as a line item expense. 3. Calendaring: Near the end of an hour-long client meeting, the attorney and client agree to a follow-up meeting the next week. An AI application has been passively listening to the conversation—with legal consent—in the background and automatically reviews each party’s calendar and proposes a new meeting time that’s mutually beneficial. 4. Intake: During new client intake, an AI application is listening in the background and automatically begins searching for potential conflicts. In the meantime, another algorithm continuously narrows down sources of legal research relevant to the legal matter at hand, as the intake form is completed or files are added to the case. 5. Predictive analysis: An AI application combs through the massive data set in a law firm’s case management and practice management system—and compares that data to public sources such as newsfeeds and stock exchange data to make a prediction: In the next 12 months, this practice area, or this type of company, represents a growth opportunity for the firm; look for new lateral hires with this expertise.55

There are many other AI applications currently impacting the legal profession, including bots like DoNotPay, an AI program that directly handles traffic citations for live clients.56 DoNotPay is expanding to assist tenants challenging eviction notices and consumers contesting fraudulent charges on credit cards.57 These bots give rise to a challenging legal ethics question recently explored by Ronald D. Rontunda: “Can Robots Practice Law?”58

II. The Interplay of Artificial Intelligence and Legal Ethics

A. Vendors and Devices

55 William Davis, How AI's Opportunities Will Augment Rather than Replace Lawyers, LEGALTECH NEWS (Oct. 5, 2017), https://www.law.com/legaltechnews/almID/1202799657613/. 56 John Mannes, DoNotPay Launches 1,000 New Bots To Help You With Your Legal Problems, TECHCRUNCH (July 12, 2017), https://techcrunch.com/2017/07/12/donotpay-launches-1000- new-bots-to-help-you-with-your-legal-problems/. 57 Id. 58 Ronald D. Rotunda, Can Robots Practice Law? VERDICT: JUSTIA (Sep. 11, 2017), https://verdict.justia.com/2017/09/11/can-robots-practice-law.

Electronic copy available at: https://ssrn.com/abstract=3097985

Electronic copy available at: https://ssrn.com/abstract=3097985

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The legal ethics concerns raised by the use of AI vary based on context. For example, the ethical duties of competence and confidentiality, pertain to the analysis of both the use of AI programs offered by third-party vendors and the use of personally and professionally owned smart devices; however, a lawyer’s relationship to a vendor is distinct from his possession and control of a smart device.59 The distinction exists because lawyers must actively protect the confidential data stored and transmitted on their individual devices. And while lawyers do not necessarily need to understand the technical underpinnings of AI algorithms, they should understand basic smart device technology. This section explores the legal ethics rules in connection with retaining an AI vendor. The section that follows discusses competence, confidentiality, and the legal ethics obligations attendant to smart devices.

B. ROSS and His Colleagues (The Vendors)

The use of AI programs in the legal profession presents a few threshold questions: Will

there be a profession-wide mandate for lawyers to employ AI in order to remain competent? In other words, if AI increases efficiency and enhances effectiveness, does a lawyer risk being subjected to a disciplinary complaint or a malpractice claim for failing to use an applicable AI program? If an AI system works more efficiently and thereby reduces a client’s bill, is a lawyer who fails to employ AI charging unreasonable fees?

Sound preposterous? It was not that long ago that some in the legal field suggested that a lawyer’s failure to consider social media in preparing a case would soon be deemed incompetence.60 The suggestion was initially met with skepticism, but today, social media has been codified as a component of competence in various ethics opinions and court cases.61

Regardless of whether the use of AI becomes a fundamental component of competence, there is, nonetheless, a competent manner in which to retain an AI vendor. Generally, retention of an AI vendor falls within the context of the established legal ethics guidelines for outsourcing legal services.62 The ABA and several states issued ethics advisory opinions between 2006 and 2012 that provide guidance to lawyers who outsource legal research, document review, and the

59 The legal profession’s consideration of bots that function without any lawyer interacting with the client is another category, the comprehensive analysis of which is beyond the scope of this article. 60 JAN L. JACOBOWITZ & JOHN G. BROWNING, LEGAL ETHICS AND SOCIAL MEDIA: A PRACTITIONER’S HANDBOOK 6 (2017); See Jacobowitz & Singer, supra note 12. 61 See JACOBOWITZ & BROWNING, supra note 60. 62 See ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 08-451 (2008); St. Bar of Cal., Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2004-165 (2004); Colo. Bar Ass’n, Formal Op. 121 (2009); Fla

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