As generative artificial intelligence (AI) rapidly evolves, the legal industry faces the challenge of defining and regulating its use. The concept of AI is complex and multi-faceted, particularly for those outside the tech sphere. This complexity is reflected in various standing orders by judges on the disclosure of AI tools in litigation. These orders range from requiring disclosure of generative AI in court filings to complete bans on AI usage. The movement for transparency extends beyond the courtroom, with lawyers and clients increasingly advocating for the disclosure of AI tools in document review and production.
The Challenge of Defining AI
One of the central issues in effectively regulating AI use is the need for precise definitions. Claire Morel De Westgaver, a partner at Bryan Cave Leighton Paisner, highlights this challenge, noting the upcoming difficulties in engagement letters and discussions with clients and experts regarding AI-based monitoring tools.
Scope and Technology Focus
Maura Grossman, a research professor at the University of Waterloo, emphasizes the importance of understanding the scope of the AI tools in question. She warns against focusing too narrowly on the technology itself, as this could lead to confusion and quickly outdated regulations. Grossman recalls similar challenges when technology-assisted review (TAR) was introduced in e-discovery, with various techniques erroneously labeled as TAR.
Seeking Guidance from Standard-Setting Bodies
For guidance in crafting policies or orders, legal professionals might look beyond the legal industry. Organizations like the National Institute of Standards and Technology (NIST) are reliable sources for setting AI standards. Andrew Burt, co-founder of Luminos.Law, suggests that NIST’s expertise in risk management and AI bias makes it a trusted authority.
Utilizing Existing Legal Resources
The legal industry also has internal resources to aid in clarifying AI discussions. Judges can draw on external feedback or rely on technology-agnostic rules like Federal Rule of Civil Procedure 11, which requires lawyer signatures on all civil case filings, ensuring accuracy and legality. The American Bar Association Model Rule of Professional Conduct 3.3 also plays a crucial role in maintaining factual and legal integrity, regardless of whether AI or human lawyers compile the information.
Moving Forward with AI in Legal Practice
As the legal industry navigates the complexities of AI regulation, existing protections and ethical guidelines remain crucial. The focus is on ensuring the accuracy and validity of legal arguments, whether derived from AI or human sources. Judge Sean P. O’Donnell from King County’s Unified Family Court asserts that existing protections have endured despite technological advancements, suggesting that the legal system can adapt to and incorporate AI advancements effectively.
