Florida Bar Hands Down Opinion on AI Ethics

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

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Florida Bar Hands Down Opinion on AI Ethics

We’re heading into the second year of generative artificial intelligence (GAI) availability, and if you haven’t been paying attention to this cutting-edge tool, there’s no better time than the present. GAI is advancing at an exponential rate and is rapidly being incorporated into the software tools you use every day. From legal research and contract drafting to law practice management and document editing, GAI is everywhere, and avoiding it is no longer an option. 

This is especially so now that legal ethics committees across the country are rising to the challenge and issuing GAI guidance. The first to do so was the State Bar of California’s Committee on Professional Responsibility and Conduct, which handed down a thorough roadmap for ethical generative AI adoption in law firms in November 2023. As I discussed in another article, the guidance provided was extensive and covered many different ethical issues including technology competence, confidentiality, and the requirement of candor, both with legal clients and courts.

More recently, both Florida and New Jersey released guidance, with Florida issuing Ethics Opinion 24-1 on January 19th, and New Jersey handing down preliminary guidelines on January 24th. Below I’ll break down the Florida opinion, and in my next article will address the New Jersey guidance.

In Florida Bar Ethics Opinion 24-1 (online: https://www.floridabar.org/etopinions/opinion-24-1/), the Board Review Committee on Professional Ethics concluded that lawyers may use GAI, but, of course, must do so ethically. The Committee addressed a broad range of ethics issues in the opinion, ranging from confidentiality and pricing to supervision and lawyer advertising.

At the outset the Committee explained that GAI tools can “create original images, analyze documents, and draft briefs based on written prompts,” but in doing so can hallucinate, which means providing “inaccurate answers that sound convincing.” As a result, the Committee cautioned that all output must be carefully reviewed for accuracy.

Next, the Committee reviewed GAI in the context of confidentiality and advised that lawyers who use GAI must have a thorough understanding of how the GAI technology handles data input and whether it uses input to train the GAI system. 

According to the Committee, a key way to do that is to vet GAI providers in much the same way as cloud computing providers. Take steps to ensure that: 1) the provider has an enforceable obligation to preserve data confidentiality and security, 2) the provider will notify the customer in the event of a breach or service of process requiring the production of client information, 3) Investigate the provider’s reputation, security measures, and policies, including any limitations on the provider’s liability; and 4) Determine whether the provider retains submitted information submitted before and after the discontinuation of services, or otherwise asserts proprietary rights to the information.

When it comes to client consent, the Committee noted that one way to mitigate confidentiality concerns would be to use in-house GAI tools like the legal-specific tools I referenced above, “where the use of a generative AI program does not involve the disclosure of confidential information to a third-party” in which case, “a lawyer is not required to obtain a client’s informed consent pursuant to Rule 4-1.6.” 

Next, the Committee reiterated the obligation to carefully review the output of any GAI tool, and that lawyers must ensure that all firm users are instructed to do this as well. The Committee cautioned that lawyers should not delegate work to a GAI tool that “constitute(s) the practice of law such as the negotiation of claims” nor should GAI be used to create a website intake chatbot that could inadvertently “provide legal advice, fail to immediately identify itself as a chatbot, or fail to include clear and reasonably understandable disclaimers limiting the lawyer’s obligations.”

Another key topic addressed was legal fees for GAI usage. The Committee explained that clients should be informed, preferably in writing, of the lawyer’s intent to charge a client the actual cost of using generative AI” and that lawyers can charge for the “reasonable time spent for case-specific research and drafting when using generative AI.”

Importantly, the Committee acknowledged that learning about GAI is part of a lawyer’s duty of technology competence, and explained that lawyers are obligated to develop competency in their use of new technologies like GAI, including their risks and benefits. However, clients cannot be charged for “time spent developing minimal competence in the use of generative AI.” In other words, you can’t charge clients for the cost of maintaining your ethical duty of technology competence.

The opinion also covers other ethics issues, so make sure to read it in its entirety. I don’t think certain requirements will withstand the test of time, such as the need to notify clients that you plan to use GAI. In the past, when ethics committees have required client notification as it relates to technology usage, that obligation has faded over time as the technology became commonplace. GAI will follow the same course, but it will happen much faster. 

That’s why these ethics opinions are so important: they provide lawyers with a roadmap for the ethical use of these tools. That being said, I don’t think these GAI opinions are technically necessary. Earlier opinions provide sufficient guidance for ethical technology adoption that can be easily applied to GAI. However, from a practical standpoint, these opinions serve a purpose: they provide a framework for moving forward and encourage lawyers to embrace GAI and the future that it brings. This means you have no excuse: there’s no better time than now to become familiar with GAI and its significant potential. 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


Increase your firm’s bottom line in 2024 by offering client-centric payment options

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Increase your firm’s bottom line in 2024 by offering client-centric payment options

Most legal clients rarely plan to hire a lawyer. While we’d like to think that the need to retain an attorney is driven by a careful and premeditated decision-making process, the truth is that people don’t often seek legal counsel unless an unforeseen event forces their hand. This reality, where legal support is more a necessity than a choice, presents a unique opportunity for law firms. By implementing flexible payment options, your firm can help bridge the access to justice gap by easing the financial strain for potential clients. This strategy attracts more clients by making your firm’s services more accessible, and also directly increases your firm's revenue, laying the groundwork for a successful 2024.

There are many ways to increase both profitability and the likelihood that prospective clients will be able to retain your firm in the coming year. Understanding how other firms have successfully achieved this goal is one approach. For this type of insight, look no further than a recent Report (online: https://www.mycase.com/reports/2023-benchmark-report-getting-paid/), which provides a variety of data points that offer financial insights gleaned from law firms across the country. The anonymized data analyzed in the Report was obtained from the MyCase practice management and LawPay payment processing platforms and includes collection rates, payment timeframes, and the impact of offering legal clients payment flexibility. Using this benchmark information, you can deploy actionable strategies that will ensure a profitable year of growth for your firm.

Let’s start by considering the average invoice collection realization rate. This metric, which provides insight into the effectiveness of a law firm’s billing processes, is calculated by dividing the amount of revenue collected during a specific timeframe by the amount billed to clients and then multiplying that number by 100. The higher the invoice collection rate, the more efficient your firm’s invoice collection process.

One benchmark provided in the Report was the invoice collection rate for solo practitioners. The data showed that over the course of a year, solo practitioners billed 685,044 hours of work and invoiced $343,894,240 to clients. The total amount collected for all invoices was $158,348,081, resulting in an invoice collection realization rate of 46%. This collection rate is a useful point of comparison since it offers a benchmark that you can use when determining your firm's invoice collection goals for the coming year.

Next, let’s consider how law firms are providing payment flexibility and increasing both profitability and access to their services. According to the Report, law firms that accepted online payments had a significantly higher and faster collection rate. The recovery rate for invoices paid through online payments was 50% compared to 17% for those paid via checks or cash. Notably, firms that accepted online payments (compared to cash and checks) collected an additional 33% and received payments at least twice as fast.

Another way lawyers are making it easier for clients to retain their firm is by offering payment plans. If you are holding off on utilizing payment plans because you aren’t sure how effective they are, the Report provides insight. The data showed that the average payment plan length was 258 days, the average number of payment plan invoices and reminders sent to customers was 37, and the average collection rate was 61% of the full amount owed. You should consider this collection rate, along with the administrative lift required, when setting up a payment plan at the start of a case. Doing so will ensure that your firm is sufficiently compensated for its work throughout the life of the matter.

Finally, another flexible payment option analyzed in the Report is a legal fee loan. This payment option allows legal clients to defer paying the full amount of the legal fee upfront by working with a third-party lender. Once the loan is approved, the lawyer is paid the full fee upfront by the lender, and the client then makes regular payments to the lender. According to the Report, the average loan length was 16 months and the average loan amount was $2,592. Lastly, the data showed that lawyers received their full legal fee within three days of the loan approval.

No matter how you view the data in this Report, one thing is evident: the integration of flexible payment options isn’t just a client-friendly approach—it’s a strategic business decision that can significantly boost your firm’s bottom line. Because legal needs often arise unexpectedly, providing clients with adaptable payment methods can be a decisive factor in their choice of legal representation. By prioritizing client convenience, your firm not only stands out in a competitive market but ensures strong, long-term client relationships and sustained financial growth in 2024.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].

 

 

 

 


Mastering Generative AI: Top Resources for the Tech-Savvy Lawyer

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Mastering Generative AI: Top Resources for the Tech-Savvy Lawyer

Now that 2023 is behind us, it’s time to set the stage for success in the year to come. While the future may be uncertain, there’s one thing you can be sure of — generative AI, a cutting-edge technology that automates content creation, will be unavoidable in 2024. You will undoubtedly encounter this technology in most of the legal technology tools your firm already uses, as companies incorporate GAI into their products, much like LexisNexis, Thomson Reuters, and others in the space already have.

This technology is rapidly transforming the legal profession by streamlining workflows and reshaping how legal professionals approach their practices. In the midst of all of this change, the ethical requirement of technology competence becomes all the more important. Understanding how to effectively and responsibly incorporate GAI into your firm is essential, but obtaining accurate information can sometimes be a challenge. 

If you’re not sure where to start, the following resources can provide valuable guidance. Below, I provide a number of different resources that will help you get up to speed and prepare you for the year ahead.

At the outset, don’t overlook this column. My articles regularly cover legal technology issues, including the impact of GAI on the legal profession. My other legal technology columns at Above the Law and ABA Journal are also good resources for GAI education, as are the many other legal technology articles written for these publications. (Online: https://www.abajournal.com/authors/64800 and   https://abovethelaw.com/author/nicoleblack/)

For a basic primer on GAI for lawyers, make sure to check out the recording of my recent presentation, “Unleashing Legal AI: ChatGPT in Practice.” (Online: https://www.mycase.com/webinars/unleashing-legal-ai-chat-gpt-in-practice/). In it, I provide an introduction to the concept of GAI, explain how it will impact the practice of law, and discuss ethical implications, along with accuracy and bias issues. 

Another resource that helps to track GAI developments in the legal space is Legaltech News, which provides a running digest of GAI news and developments in our industry. (Online: https://www.law.com/legaltechnews/2023/12/20/tracking-generative-ai-how-evolving-ai-models-are-impacting-legal/).

For in-depth GAI analysis and insight, make sure to attend an upcoming legal technology conference. Many of this year’s conferences have entire tracks devoted to learning about and understanding the impact of GAI on the legal profession. There are two key conferences occurring during the first quarter of the year that are worth considering: Legalweek 2024 in New York City later this month and ABA TECHSHOW in Chicago next month. (Online: https://www.event.law.com/legalweek and https://www.techshow.com/).

Another option is Bob Ambrogi’s Legaltech Week webcast, which consists of a panel of legal technology journalists  (of which I am one) who discuss the week’s legal technology news at 3 pm ET every Friday. (Online: https://www.lawnext.com/category/legaltech-week). GAI made headlines last year and will continue to be a topic of conversation throughout 2024, so this webcast is a great way to stay on top of GAI trends. If you’re not able to attend the live webcast, you can watch weekly recordings on YouTube. (Online: https://www.youtube.com/@legaltechweek).

Finally, LinkedIn is a great resource for legaltech news. In recent years, this social network has evolved from a fairly static site that consisted mainly of online resumes and tools for job seekers into a vibrant network for professionals seeking to connect with their colleagues and learn more about their industry. If you follow a few legaltech journalists, experts, and educators, you’ll find that their regular updates provide a wealth of information on GAI, from news to how to use it in your practice.

As you prepare for a successful 2024, understanding GAI and how to strategically use it in your firm will be essential. The resources discussed above provide a starting point that will assist you in implementing it in your practice both efficiently and ethically. Not only will embracing these tools increase your firm’s productivity and competitiveness, but they will also enhance your capacity to serve clients effectively and affordably in an increasingly digital world.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


LegalTech Trends: 2023 Recap and 2024 Forecast

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

LegalTech Trends: 2023 Recap and 2024 Forecast

When I think about the last few years, this Grateful Dead lyric immediately comes to mind: What a long, strange trip it’s been. It’s been quite a year! The one word that accurately summarizes the events of the past few years is “unpredictable.”

In December 2019, a global pandemic and the groundbreaking release of generative AI were not on my Bingo cards for the 2020s predictions. Increased cloud usage, tumultuous politics, and maybe a new social media platform - those would have been reasonable predictions. Instead, as 2023 draws to a close, we’re entering strange new territory.

The full-fledged pandemic seems to be behind us, but its impact continues to be felt. Its long-term effects on our collective health are as yet unknown. What is known is that it ushered in an age of accelerated technology adoption. Lawyers and judges, whom I never imagined embracing technology, are now happily using Zoom, with iPads in hand and smartwatches on their wrists.

The pandemic primed lawyers to be receptive and curious about new technology, and what perfect timing! As we emerged from the cocoons of our homes and returned to the office, in some cases on a hybrid basis, hoping for a return to a semblance of normalcy, a new technology was unleashed.

Generative artificial intelligence (AI) tools like ChatGPT made headlines in early 2023, with analysts predicting the legal profession as one of the most likely areas to be impacted by this new technology. Many lawyers immediately understood its benefits and experimented with generative AI, with some ignoring competency requirements, to their detriment.

In the second half of the year, leading legal technology companies like LexisNexis and Thomson Reuters announced the rollout of this technology across their platforms, and nearly one hundred other companies released beta generative AI tools, with many others in the works. Just a year after the public release of OpenAI’s ChatGPT 3.5, this technology is familiar to lawyers and is increasingly being used by them as trusted legal
technology providers throw their hats into the ring.

In fact, according to MyCase and LawPay’s soon-to-be-published 2024 Legal Industry Report, 27% of the more than 2600 legal professionals surveyed have used generative AI for work-related purposes.

Think about that: in just one year, nearly one-third of legal professionals are already using this nascent technology.

I never would have predicted this high rate of adoption of a new technology in 2019 - or even in late 2022. For that reason, I’m hesitant to throw my hat in the ring with predictions for 2024. I used to be confident in my legal technology predictions, but no more. The unpredictability of recent events has shaken my confidence!

Even so, I’ll give it a shot. I predict that in 2024 the vast majority of legal technology software providers will publicly release generative AI tools into their products, and by the end of 2024, more than 60% of legal professionals will be using it as part of their
workflows.

As Baby Boomers retire, technology adoption in law firms will increase across the board. E-filing will continue to gain traction and the number of law offices with paperless workflows in place will increase as well. Online document storage and cloud-based legal software such as law practice management platforms will become the norm over the next year or two, as more firms’ operations become cloud-firs. Finally, Flexible payment options for legal services, including payment plans and pay later options, where a third party provides legal clients with loans for legal fees, will increase as legal consumers demand more convenient ways to pay for legal services.

The start of the 2020s was tumultuous and full of change. I expect that over the next few years, the pace of advancements won’t slow down, but lawyers are more prepared than they’ve ever been to acclimate and adjust as needed. Let’s hope that the levels of unpredictability decrease, however. We’ve had enough instability to last us for the next decade, so here’s to smooth sailing ahead in 2024! Cheers, and see you on the other side!

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


2023’s best tech gifts for legal professionals 

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

2023’s best tech gifts for legal professionals 

It's December, and that means the holidays are fast approaching, making it the perfect time to start shopping for the lawyers and legal professionals in your life. Whether you’re a legal professional looking to reward yourself for all the hard work you’ve put in over the past year or you’ve got a lawyer on your gift list, you’re in the right place. Below, I provide my top technology gift picks for legal professionals.

But first, let’s reflect on 2023. It was a year of significant change. Businesses accelerated post-pandemic, and remote work became a hotly debated topic. Economic headwinds threatened much-needed fiscal growth as inflation — and gas prices — sky-rocketed. International wars continued and new conflicts broke out. 

Notably, Generative AI made its grand entrance early in the year, threatening to disrupt the world - and the practice of law - as we know it. Meanwhile, Gen Alpha’s new slang mystified Gen Z, who in turn mercilessly mocked Millennials, who spent their days yelling at Boomers. Throughout it all, Gen X gleefully watched from the sidelines, collectively smirking at the generational chaos.

No matter your generation, as this crazy year draws to a close, you’ve got gifts to buy, and soon. If you’re not sure where to start, never fear: I’m here for you! That is, as long as technology is your jam. If so, you’re in the right place, and I’ve got a few great ideas.

First, there’s the Anker magnetic battery, 5,000 mAh foldable wireless portable charger with a built-in stand. Its small size, lightweight design, and foldable stand make it ideal for travel. Set it up on your tray table, sit back, and watch a show on your phone while it charges. At $49.99 on Amazon, it’s a bargain for all that you get.

Next, consider a pair of Sony WF-1000XM5 wireless Bluetooth noise-canceling earbud headphones. Their excellent sound quality and effective noise-canceling make them perfect for travel, especially on noisy flights. You can wear them on a plane and you won’t even hear the screaming toddler two seats over. Having been in that exact situation I can assure you that the $248 price tag on Amazon is well worth it.

CUCICU 3-in-1 wireless charging stand is another great gift for the tech-savvy legal professional in your life. This single device simultaneously charges your Apple Watch, iPhone, and AirPods. For only $22.99 on  Amazon, what more could you ask for?

For frequent travelers or forgetful souls, the Apple AirTag makes a great gift. Add this device to a key chain, or put it in luggage or a purse. Then, easily track the location of the device using an iPhone. It’s a great way to keep track of what matters, and at $29 apiece from Apple, you’ve got nothing to lose!

Finally, if the legal professional in your life is old school and insists on handwritten notes, then consider investing in the Rocketbook reusable smart notebook. Using a smart pen and this notebook, handwritten notes are converted into digital text that is easily accessible via a cloud storage service. And the price is right at $22.51 on Amazon.

As the year ends, these tech gifts are ideal for legal professionals. Offering both innovation and practicality, they're sure to bring efficiency and joy to their daily work. Wishing you happy holidays and happy shopping.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


California Ethics Committee is First to Weigh in On AI

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

California Ethics Committee is First to Weigh in On AI

Back in August, I discussed the imminent arrival of legal ethics opinions on generative AI tools. Since then, a small number of pioneering lawyers have experimented with this technology even without ethics guidance. For those who have been holding off until an ethics committee weighed in, your wait is over. 

As we head into the final month of 2023, you’ll be happy to know that ethics guidance focused on generative AI was published on November 16 by the State Bar of California’s Committee on Professional Responsibility and Conduct (COPRAC). 

It provides a thorough roadmap for generative AI adoption in law firms. 

At the outset, COPRAC explained that AI in its current state is simply a new kind of technology and does not warrant special treatment. As a result, “the existing Rules of Professional Conduct are robust, and the standards of conduct cover the landscape of issues presented by generative AI in its current forms. However, COPRAC recognizes that generative AI is a rapidly evolving technology that presents novel issues that might necessitate new regulation and rules in the future.”

The guidance provided by COPRAC was extensive, addressing many different ethical issues. Issues addressed included technology competence, confidentiality, and the requirement of candor, both with legal clients and courts. Below you’ll find some of the most notable takeaways.

The first topic tackled was the duty of confidentiality. According to COPRAC, lawyers “must not input any confidential information of the client into any generative AI solution that lacks adequate confidentiality and security protections.” The overarching obligation lawyers have in this regard is to fully vet AI providers and their products (or have an IT consultant do this on your firm’s behalf) so that you fully understand how confidential data will be handled and protected.

COPRAC also addressed technology competence, explaining that lawyers must learn, to a reasonable degree, “how the technology works, its limitations, and the applicable terms of use and other policies governing the use and exploitation of client data by the product.” In addition to ensuring an understanding of generative AI, the ethics rules also require that AI outputs be carefully reviewed for accuracy and bias.

Next up was the duty of supervision. COPRAC explained that supervisory and managerial attorneys must ensure that clear policies are in place that address permissible uses of AI. Those measures must provide “reasonable assurance that the firm’s lawyers and non lawyers’ conduct complies with their professional obligations when using generative AI.”

COPRAC further emphasized the importance of full candor with courts and clients. To that end, lawyers should carefully review all generative AI outputs for accuracy and correct any errors before submission to courts. The committee cautioned that “(o)verreliance on AI tools is inconsistent with the active practice of law and application of trained judgment by the lawyer…and AI-generated outputs can be used as a starting point but must be carefully scrutinized.”

Similarly, client communication obligations require that lawyers consider disclosing their intention to use generative AI to clients, “including how the technology will be used, and the benefits and risks of such use.” The committee also advised lawyers to be aware of any client directives that might conflict with the use of AI in their case.

Last but not least, COPRAC weighed on billing clients for AI-related work product, explaining that lawyers may charge for the time spent creating, refining, and reviewing generative AI outputs. Notably, the committee opined that charging for the time saved by using generative AI is impermissible. Finally, it determined that fee agreements “should explain the basis for all fees and costs, including those associated with the use of generative AI.”

With the issuance of this widely-anticipated guidance, nothing is holding you back from diving into the generative AI waters. With the recent release of legal generative AI products from LexisNexis and Thomson Reuters, and with many other legal AI products in the works, there’s no better time than now to take advantage of all that this technology offers. Rest assured, if you aren’t using it and reaping the time-saving benefits and efficiencies, your competitors undoubtedly will be.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


Thomson Reuters' AI Debut Signals a New Era of Widespread AI Integration in Legaltech

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Thomson Reuters' AI Debut Signals a New Era of Widespread AI Integration in Legaltech

Have you been tracking the explosive rate of generative artificial intelligence (AI) innovation? If not, you’re at the risk of being left behind. Innovation and investment in this space are off the charts, and all signs point to continued and exponential shifts that will significantly impact the legal profession.

The AI revolution began less than a year ago when OpenAI publicly launched ChatGPT 3.5 on November 30, 2022. Then on March 14, 2023, with the release of ChatGPT powered by GPT-4, the influx of rapid advancements began at a record pace as software companies worked at lightning-fast speed to integrate the power of GPT-4 technology into their products.

It shouldn’t surprise you to learn that legal technology companies have joined the fray. Since early 2023, over one hundred announcements from legal technology companies have emerged, detailing plans to incorporate generative AI functionality into their products. Although most products are still in beta, rest assured that regardless of the software platforms used in your firm, you can expect that generative AI will soon be seamlessly integrated into the tools that are part of the daily workflows of legal professionals in your firm.

Proof in point: Wednesday’s generative AI announcements from Thomson Reuters offer strong evidence that we’re entering a new era of widespread AI integration. For Thomson Reuter’s legal customers, the integrated generative AI experience will soon be a reality and readily accessible across several different products. This newfound capability largely stems from leveraging CoCounsel, a generative AI legal assistant tool acquired by Thomson Reuters as part of the acquisition of Casetext for $650 million, which was completed in August.

The AI-powered updates announced by Thomson Reuters include: 1) generative AI-Assisted research is now available to all Westlaw Precision customers, 2) the launch of a generative legal AI assistant interface next year across all Thomson Reuters generative AI products (Practical Law Dynamic Tool Set, Document Intelligence, and HighQ), and 3) CoCounsel Core, a legal assistant that complements Westlaw Precision and provides lawyers with eight core skills: AI-Assisted Research on Westlaw Precision, Prepare for a Deposition, Draft Correspondence, Search a Database, Review Documents, Summarize a Document, Extract Contract Data, and Contract Policy Compliance.

If Thomson Reuters’ investment of time, resources, and money into this technology doesn’t convince you of its inescapable impact on our profession, I’m not sure what will. The writing is on the wall: adapt or fall behind. If you don’t take advantage of this technology, your competitors will. 

For the skeptics: This is not a fleeting trend, but a permanent change in our industry. Instead, it represents a seismic shift that will change the way legal work is done. The integration of AI through platforms like Westlaw Precision and CoCounsel will revolutionize legal workflows by offering unprecedented efficiencies. 

The stakes are high. Rather than burying your head in the sand, approach this evolution with curiosity and proactivity. Attend seminars focused on generative AI and actively explore how the legal technology tools you depend on will incorporate or integrate this technology. Harness your newfound knowledge to make informed, strategic decisions that will lay the foundation for your firm's future success, using generative AI not only as a tool but as a strategic asset to benefit both your practice and your clients. 

The AI-enabled legal landscape is advancing at breakneck speed, and those who lag in embracing these tools will find themselves at a competitive disadvantage. In today’s rapidly changing environment, staying informed and agile isn’t optional—it's essential for survival and success in the modern legal landscape.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


Beyond Word of Mouth: Proven Data-Driven Client Acquisition Methods

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Beyond Word of Mouth: Proven Data-Driven Client Acquisition Methods

What used to be tried and true client acquisition methods are no longer reliable in today’s digital world. Word-of-mouth referrals alone no longer suffice. In 2023, traditional approaches are complemented—and often overshadowed—by a variety of online client acquisition channels, including online search, social media, and paid online ads. The right mix of digital and traditional lead sources can set a practice apart, and understanding and leveraging the appropriate online channels is key for any firm looking to thrive in today's competitive legal marketplace.

Of course, every lawyer is different, and a firm’s practice areas will necessarily dictate its online marketing strategy. In today’s ever-changing online environment, the challenge is to identify the most affordable and impactful lead-generation approach for your law firm. If you’re not sure where to begin your research, the data from the recently published “LawPay and MyCase 2023 Benchmark Report Part 3: Getting Leads” is a great place to start.

This Report draws on anonymized data obtained from the MyCase and LawPay platforms. It provides lead generation insights, including a deep dive into lead sources, lead conversion rates, and the impact of payment types on consultation fee collection.

One important data point covered in the Report is lead conversion rates. Lead conversion rates are calculated by dividing the total leads converted into paying clients by the total number of leads overall during that same timeframe. The report reveals that, in 2023, the average lead conversion rate for lawyers in the database stands at 24%. Compare that percentage with your firm’s lead conversion rate to see how your firm stacks up. If your rate is significantly lower, it’s a sign that you may need to make some changes to your firm’s marketing processes.

There are many ways to do this, one of which is to add a client intake or contact form to your law firm’s website. This is an effective way to make your law firm more accessible to potential clients, especially during off hours, such as evenings or weekends. According to the Report, lawyers with client intake forms embedded on their firm websites captured an additional 58,395 leads in 2023. Of those leads, 10,286 ultimately became law firm clients. Given those numbers, don’t make the mistake of overlooking this relatively simple path to increasing your firm’s client base.

Of course, there are many other online marketing options available to lawyers. The tricky part is figuring out where to invest advertising dollars. The days when billboards, event sponsorships, or newspaper and TV ads sufficed are long gone. Instead, the online world offers a vast number of marketing avenues. This reality makes it difficult to know where to begin. 

Fortunately, the report's data offers valuable guidance. Your firm’s practice areas and associated clientele necessarily determine where you should focus your efforts online. For example, if your firm represents mostly business clients or professionals, then Instagram is probably not the best choice, and LinkedIn would be a better fit. That’s why the final section of the Report lists the top online lead sources for many different practice areas. Locate your practice areas and use the applicable data to make informed decisions about your firm’s marketing strategy.

Finally, don’t forget about the value of charging for consultation fees. The benefit is twofold: it signals that your time is valuable, and can also bring in significant revenue. According to the Report, lawyers who charged for consultations collected nearly $19 million from potential clients in 2023. Of that amount, nearly $17 million came from online payments for consultation fees. In other words, prospective clients were eight times more likely to use online payment processing tools than more traditional payment methods like check or cash. 

We live in a digital-first world, and navigating the ever-changing online environment is no small task. If you’re feeling overwhelmed, you’re not alone. For many lawyers, adjusting to the pace of change and evolving lead generation options may seem daunting. That’s why data is your best friend; it equips you to make strategic, targeted marketing decisions for your law firm that will set it up for long-term growth and profitability. 

So what are you waiting for? Dive into the Report, embrace its insights, and set the stage for your firm’s marketing success!

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


Legaltech Due Diligence: Evaluating Cloud and AI Software

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Legaltech Due Diligence: Evaluating Cloud and AI Software

Technology is evolving at a pace never before seen. While it can often feel overwhelming, there’s no better time to embrace change by incorporating emerging tools like cloud-based software and artificial intelligence (AI) into your law firm. Given the rapid pace of change, your best option is to do all you can to avoid falling behind.

Of course, whenever you consider implementing new cloud-based technology, including AI software, into your law firm, it’s essential to thoroughly understand the implications of technology adoption and fully vet all software providers that will handle your firm’s data. Your ethical obligation is to take reasonable steps to ensure that all confidential information will be properly protected and securely maintained.   

One of the first things you can do to ensure your firm’s data security is to use legal technology tools rather than consumer-grade software. Legal technology providers understand the needs and ethical obligations of legal professionals and are thus better equipped to meet your needs. But even when using legal software, you still required to understand how your firm’s data will be handled and protected. 

If you’re not sure where to start, I’ve got you covered. Below you’ll find a partial list of questions to ask cloud and AI companies. The comprehensive list of questions can be accessed online here: https://www.lawtechtalk.com/questions-to-ask-cloud-providers.html.

These questions will help you vet legal software providers, including 1) who will have access to it and under what conditions; 2) what steps will be taken to secure the data, 3) what types of data backup procedures are in place, 4) whether the accuracy and reliability of the output are sufficient for your needs, and 5) how you can export your data should you decide to switch providers.

Partial List of Questions to Ask AI Providers 

  • What is your AI’s core technology and architecture?
  • What data does your AI require for training?
  • How do you ensure your AI model’s accuracy?
  • How does your AI handle bias and fairness?
  • How is your AI model updated and improved over time?
  • What is your AI’s interpretability and transparency like?
  • What is your model’s performance in real-time applications?
  • Can your AI model be customized to our specific needs?
  • What kind of support and training do you provide?
  • How do you ensure confidentiality, data security, and privacy?

Partial List of Questions to Ask Cloud Providers

  • How long has the company been around?
  • What type of facility will host your law firm's data?
  • Who else has access to the cloud facility, the servers, and the data?
  • How does the vendor screen its employees?
  • Is the data accessible by the vendor’s employees limited to only those situations where you request assistance?
  • If there are integrations with the company's product, how does the company screen the security processes of the other vendors?
  • If there is a problem with a product that integrates with the vendor's software, which company will be responsible for addressing the issue?
  • Does the contract with the vendor address confidentiality?
  • How often are backups performed?
  • What types of encryption methods are used?

Keeping up with change isn’t always easy, but it’s essential in today’s fast-paced environment. Staying up-to-date and carefully vetting the companies that will provide technology solutions for your firm will lay the groundwork for future success. Your diligent efforts will pay off in the long run by enabling your law firm to thrive by leveraging technology that will level the playing field and allow you to compete in innovative ways never before imagined. 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


Surf Smarter: 10 Extensions to Upgrade Your Web Browser

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Surf Smarter: 10 Extensions to Upgrade Your Web Browser

Like it or not, you probably spend several hours each day online. Nowadays, the internet serves as our lifeline, offering immediate access to whatever we need, whenever we need it. Whether on your smartphone, tablet, laptop, or desktop, the online world offers a window into the world of limitless information.

We've come to rely on—and often take for granted—the tool that grants us instant access to cyberspace: the web browser. While not necessarily an exciting piece of technology, it’s nevertheless a reliable workhorse that we use daily. Browsers are highly functional on their own, but adding browser extensions can make your online experience both more productive and secure.

Browser extensions are typically available regardless of the tool you’re using, and many are accessible across multiple platforms. To add them to your browser you need to locate the extension “store,” usually located within your browser’s settings. The store includes categorized add-ons, and you can also search for specific ones. 

I take advantage of a host of different extensions that enhance and improve my online experience and regularly add new ones as I discover them. Below you’ll find my top ten most-used extensions, along with an explanation of how each one adds to my daily workflow.

AdBlock: This browser extension serves as a digital shield, filtering out intrusive advertisements from web pages and enhancing your experience by reducing page load times and conserving bandwidth.

ChatGPT for Google: This add-on integrates GPT-based conversational AI into Google search, providing you with enhanced search capabilities, contextual assistance, and even real-time language translation, making Google's ecosystem more interactive and intuitive.

Consent-o-Matic: This extension automates the often cumbersome process of managing GDPR cookie consent forms across various websites, and streamlines your navigation by automatically selecting or declining cookies based on your preferences.

DuckDuckGo: More than just a search engine, this extension offers a comprehensive privacy solution by blocking third-party trackers, encrypting connections, and providing a private search functionality that doesn't store your data.

Grammarly: Grammarly is a comprehensive writing assistant that scrutinizes your text for grammatical errors, offers stylistic improvements, and even employs algorithms to detect the tone and suggest revisions to enhance the readability of your writing.

PayPal Honey: This shopping assistant extension goes beyond finding and applying coupon codes at checkout; it's integrated with PayPal to offer a seamless transaction experience, and even provides price tracking and alerts.

PrintFriendly: This extension transforms cluttered web pages into clean, print-ready versions by stripping away ads, navigation bars, and other non-essential elements, making it easier to print the page or save it as a PDF.

Search the current site: This browser extension streamlines your web navigation by enabling focused, site-specific search queries directly from your browser's toolbar, eliminating the need to navigate through a website's own (often cumbersome) search function or manually search a page by entering site:URL into a search engine.

Trim: This extension enriches your streaming experience by embedding IMDb, Rotten Tomatoes, and Metacritic ratings directly into Netflix, Amazon Prime Video, and other streaming services, enabling you to make informed choices about what to watch next.

WOT (Web of Trust): This extension serves as a real-time sentinel by evaluating the reputation of websites you visit and warning you about potential security risks, scams, or phishing attempts, based on community reviews and machine learning algorithms.

Install any or all of these extensions and reap the rewards of a more streamlined, ad-free, and data-rich browsing experience. Gone are the days of unsafe websites, paying full price, or blindly choosing movies. Instead, you’ll be armed with grammatically correct documents, instantaneous ChatGPT search results, and the best online deals in town. What more could a sophisticated internet traveler ask for?

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].





Sharing space, not secrets: Office sharing insights from ABA Formal Opinion 507

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Sharing space, not secrets: Office sharing insights from ABA Formal Opinion 507

The landscape of our lives looks very different now than it did before the pandemic struck. Nowhere is this more apparent than in the workplace. Remote work is more common than ever and increased technology usage has enabled more flexible and creative work arrangements. Because five-day in-office work weeks are less common, office-sharing arrangements have become more palatable for lawyers. Less office space is required due to hybrid work schedules, thus allowing more people to work from one office and divide rental costs while also sharing resources. 

However, with more office-sharing by attorneys comes the need to carefully balance the convenience with the potential risks this type of arrangement can pose. Fortunately, there is guidance available in the form of a recently released ethics opinion, ABA Formal Opinion 507.

Handed down in July, this opinion addresses the ethical issues that arise when lawyers participate in office-sharing arrangements. The Standing Committee on Ethics and Responsibility concluded that it is generally permissible for lawyers to share offices with others, but when doing so there are a number of ethical issues to keep top of mind.

First, the Committee cautioned that it’s essential to take steps to protect client confidentiality. Lawyers must ensure that the physical arrangement of the shared office space does not expose client information to other office-sharing lawyers or their staff. Safeguards that should be considered include maintaining separate waiting areas, installing privacy screens, and using technology to provide secure storage for client files 

The Committee discussed the importance of using separate telephone lines and computer systems, along with providing staff training to protect client information: "(L)awyers can also restrict access to client-related information by securing physical client files in locked cabinets or offices and using separate telephone lines and computer systems. Lawyers, however, may overcome confidentiality concerns with shared telephone and computer systems with appropriate security measures, staff training, and client disclosures." 

While keeping client information secure is paramount, it's not the only ethical obligation lawyers need to consider. Clear communication was also emphasized. According to the Committee, lawyers have an ethical obligation to clearly communicate the nature of their relationship to the public and clients to avoid misleading impressions. There are a number of ways that lawyers sharing office space can ensure compliance, including using separate business cards, letterheads, and directory listings.


The Committee also opined on the importance of taking steps to avoid conflicts of interest, explaining that attorneys “should pay particular attention to (1) avoiding the imputation of conflicts of interest, (2) taking on potential new matters that are adverse to clients represented by other office sharing lawyers, and (3) consulting with fellow office sharing lawyers.” 

Another area to approach with caution is when sharing staff with other lawyers. 

If lawyers decide to share support staff, they must instruct all employees regarding their confidentiality obligations and should take steps to supervise them appropriately. 

Finally, the Committee addressed issues that arise when lawyers who share office space consult with one another about their cases. According to the Commitee, lawyers should avoid disclosing client-identifying or privileged information during informal consultations, and discussing issues through hypotheticals is recommended. Notably, these consultations can sometimes lead to unexpected conflicts of interest that could limit a lawyer's ability to represent current or future clients. Therefore, a standard conflict check should be conducted before any informal consultation discussion in order to mitigate this risk.

The pandemic and technological changes have upended traditional legal practices. As a result, we now have an unprecedented array of options for how and where to conduct our work. But as this opinion reminds us, with this newfound flexibility comes a heightened ethical burden. In a landscape that's shifting almost as quickly as technology itself, this opinion provides much-needed guidance for lawyers seeking to take advantage of the many benefits offered by hybrid work arrangements like office-sharing.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


Decoding ILTACON 2023: Key Takeaways on AI's Impact on the Legal Profession

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Decoding ILTACON 2023: Key Takeaways on AI's Impact on the Legal Profession

Last month I attended the International Legal Technology Association Conference (ILTACON). This year’s conference was full of excitement about the potential of legal technology and its impact on the practice of law. Particularly noteworthy was the focus on generative artificial intelligence (AI) technologies, a rapidly evolving field that will have significant implications for the legal profession as a whole.

This year's event was more than just a chance to network and exchange business cards; it was a deep dive into the seismic shifts that generative AI is causing in our industry. Whether the topic of conversation was ChatGPT, Bing Chat, or generative AI tools built into legal platforms, the anticipation in the air was palpable, and the enthusiasm for the possibilities was unprecedented.

The data disseminated during the conference supported the bold claims that we're on the cusp of revolutionary changes, despite some of the current challenges faced when integrating generative AI into legal processes, including confidentiality issues and inaccurate results. What follows are some of the key takeaways derived from two reports released at the conference.

First, there’s the 2023 LexisNexis Global Legal Generative AI Survey, which targeted an international audience and asked respondents to weigh in on their familiarity with this emerging technology. According to the report, an impressive 89% of legal professionals are acquainted with generative AI, while consumer awareness lags at 61%.

The survey results also showed that the majority of lawyers worldwide recognize the potential of generative AI, with 65% citing research as the main possible application for generative AI tools, which is a somewhat surprising outcome given the recent negative news headlines about the false case citations derived from ChatGPT. Other important use cases cited by survey respondents include drafting documents (56%), document analysis (44%), and automating email correspondence (35%).

Survey data also showed that in the legal community, the current generative AI adoption rate for legal-specific tasks is only 15%. Nonetheless, a more optimistic 43% are either already employing or intend to employ generative AI in their legal workflows. A strong majority—77%—anticipate that these tools will enhance the efficiency of legal professionals, including lawyers, paralegals, and law clerks.

For those legal professionals who are already using generative AI tools, the survey results showed that the majority are using it for research (62%), while nearly half (46%) utilize it for document drafting, 42% rely on it to assist with email drafting, 29% for understanding new legal concepts, and 23% for document analysis.

Finally, close to half of all legal practitioners surveyed (47%) predict that generative AI will bring about significant or transformative changes in the field of law. A near-unanimous 92% expect the technology to exert at least some level of influence on legal practice.

In contrast, the Everlaw 2023 eDiscovery Innovation Report, also shared at the conference, offers a less favorable outlook. A mere 6% of those surveyed believe that the legal field is ready for the advent of generative AI, with more than 72% either disagreeing or strongly disagreeing with that sentiment. A smaller subset of 21% of those surveyed remained neutral. The leading concern among respondents was the accuracy of these AI tools, cited by 46%. Despite these reservations, a noteworthy 40% are either: 1) already implementing (12%) generative AI tools in their firms or 2) have plans to implement them in their firms (28%).

The data released at ILTACON 2023 provides evidence of the increased interest in generative AI and the impact that it will have on the legal industry. It’s clear that these technologies are not simply supplementary tools and instead have the potential to redefine the very nature of legal work. Whether you're an attorney in a large firm, a boutique practice, or a solo practitioner, the question isn’t if, but how quickly and strategically you can adopt and implement these advancements into your firm, with the end result being a more efficient, profitable, and client-centric practice.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


Never fear, AI guidance for lawyers is near

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Never Fear, AI Guidance for Lawyers is Near

You may have noticed that generative AI tools like ChatGPT are making waves lately. However, in their current iteration, when these tools are used by legal professionals, it’s not necessarily smooth sailing.

If you’re worried about ethics and security, rest assured you're not alone. The promised efficiencies of these tools are tempered by genuine concerns about the accuracy of results, confidentiality, and ethical compliance. Since this technology is both new and rapidly changing, implementation in law firms is a challenging task, and innovative lawyers are forced to navigate the uncharted waters of generative AI in the absence of clear guidance.

Fortunately, help is on the way. In a number of different jurisdictions, plans have been announced that are designed to address many of the thorny issues presented by generative AI, either through the issuance of ethics opinions or the formation of committees dedicated to tackling these challenges.

For example, in July the New York State Bar Association announced that it was forming a task force to address emerging issues related to artificial intelligence. The Bar explained that the task force would “address the benefits and potential dangers surrounding artificial intelligence and make regulatory recommendations for this powerful and fast-developing technology.” The task force plans to “develop policies for bar association adoption and suggest legislation to govern effective and responsible AI use.”

Similarly, a few weeks later, the Texas State Bar also announced the formation of a workgroup that would “examine the ethical pitfalls and practical uses of AI and report back within the year.” The ultimate goal is for the workgroup to provide recommendations on the policies related to AI that should be implemented by the state bar.

Finally, in May, the California Bar created a committee tasked with examining the impact of AI on the profession. The goal is to draft an advisory ethics opinion for release in November that would address the risks and benefits of using AI in legal practice and provide guidance on how to do so while complying with ethical obligations.

In the meantime, because generative AI technology is evolving so fast, you may as well learn as much as you can about it. That way, when the time comes, you’ll be able to make an informed decision about whether and how to use it in your law firm.

The guidance offered by the various state bars will help, but you’ll need to have a foundational knowledge of AI technology in order to make an educated choice that complies with the findings and determinations of the appropriate committee.

This course of action not only makes sense, it also ensures compliance with the duty of technology competence.

To get started, there are three sites with sections devoted to AI that will enable you to easily track the latest generative AI news: Above the Law, Legaltech News, and ABA Journal.


And if you’re really interested in a deep dive into ChatGPT and best practices for using this tool in your law practice, there’s a course available that is offered by New Orleans attorney and legal technology consultant, Ernie Evenson. It’s a free course called “Using ChatGPT in Modern Practice."

So whether you’re a legal tech geek or a curmudgeon, never fear: the technological and ethical assistance that the legal community has been seeking will arrive soon. While you’re waiting, embracing these changes and preparing for the new regulatory landscape is a great way to chart an innovative course while continuing to serve your clients effectively. The intersection of law and AI is a journey, and with the right roadmap, it’s one that promises to be both rewarding and impactful.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].


Generative AI in Law: Resistance is Futile

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Generative AI in Law: Resistance is Futile

I started writing this column on legal technology in 2007, and over the years I’ve noticed a pattern. Time and time again, whenever a new technology comes along that impacts the practice of law, members of our profession tend to have a knee-jerk reaction to it. There’s talk of “bans,” declarations of significant consequences due to related ethical violations, and dire warnings that the sky is about to plummet to the earth.

First, it was blogging, followed by social media, mobile phones, tablets, cloud computing, and artificial intelligence. As each new technology emerged on the scene, there was collective outrage, disdain, and promises of imminent regulatory peril. Purported curmudgeonly experts - especially those whose job functions were imperiled by each new wave of technology - prophesied looming and significant threats to law licenses, client confidentiality, and the reputation of the profession as a whole. Each new technology was viewed as a threat to the very foundation of the practice of law. 

Of course, this pattern started long before I entered the world of legal technology. Lawyers have always been suspicious of technology. PCs, faxes, the internet, online legal research, and email were met with wariness, skepticism, and sometimes even outrage. 

Our profession is far more comfortable with precedent than radical evolution, but as we know, every time a new technology is introduced, it beings with it the promise of change. So of course it’s predictable that the now-familiar pattern of setting up roadblocks to adoption will occur in due haste whenever a cutting-edge technology intrudes on our change-resistant legal profession.

Examples of technology adoption hurdles often put in place by ethics committees and others when new technologies are adopted by lawyers include outright bans, requiring signed client consent or published disclaimers, and imposing obligations to notify or obtain permission from judges when using it. Eventually, however, as specific types of technology become more commonplace and familiar, these requirements are eased over time and eventually eradicated entirely. 

With the recent explosion of newly released generative artificial intelligence (AI) tools like ChatGPT and Google Bard and their rapid adoption by legal professionals, we’re seeing the same pattern of reticence emerge across the legal landscape, from the hallowed halls of law schools to our esteemed courtrooms.

The use of generative AI in litigation has been prohibited by some judges. In one instance, Judge Brantley D. Starr of the US District Court for the Northern District of Texas issued a standing order in April requiring lawyers to certify that generative AI tools were not used to assist with drafting any papers filed with the court. Similarly, U.S. Court of International Trade Judge Stephen Vaden likewise issued an order in June that required lawyers appearing in his court to certify that “any submission(s)...that contain…text drafted with the assistance of a generative artificial intelligence program…be accompanied by: (1) A disclosure notice that identifies the program used and the specific portions of text that have been so drafted; (2) A certification that the use of such program has not resulted in the disclosure of any confidential or business proprietary information to any unauthorized party…”

Law schools have also jumped onto the “ban ChatGPT” bandwagon. In April, Berkeley Law School was one of the first to impose restrictions on the use of generative AI by its students. The school released a policy that prohibited students from using it “on exams or to compose any submitted assignments,” and only permitted them to use it “to conduct research or correct grammar.”

More recently, generative AI use was targeted in law school applications. In mid-July, the University of Michigan law school announced that prospective law students were banned from using generative AI tools to assist with the preparation of personal statements.

Fortunately, there are some forward-thinking members of the legal profession who are accepting the inevitability of rapid technological change and are embracing rather than fighting the adoption of generative AI into our profession. In January, Dean Andrew Perlman of Suffolk University Law School suggested that law school students should be taught how to use generative AI as one of the many useful tools in their legal research and writing arsenal. 

In other words, he believes that law students (and lawyers) should learn about generative AI and make educated decisions about how to responsibly and ethically use it to streamline legal work and increase efficiencies. If you ask me, that sounds an awful lot like that pesky duty of technology competence, which is a key ethical obligation for lawyers practicing law in the digital age. Funny how that works, isn’t it?

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].

 


Ethical implications of charging credit card fees: Insights from the NYSBA

Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

*****

The Ethical Implications of Charging Credit Card Fees: Insights from the NYSBA

As the legal profession adapts to the digital age, the types of payment methods accepted from clients have likewise evolved. Lawyers in 2023 accept many forms of payment from clients, including credit cards. In fact, accepting credit card payments for legal services has become increasingly commonplace.

However, that wasn’t always the case. When lawyers first proposed the idea of accepting credit cards for payment of legal fees, there was significant resistance. The concern was that legal clients who were facing the complexities of their cases would be further burdened by the additional costs associated with credit cards. This resistance was grounded in our profession's commitment to maintaining a fair and equitable relationship between lawyers and clients.

Over time, however, attitudes changed. Credit cards were viewed with less skepticism, and as a result, many lawyers now regularly accept credit cards from clients. By doing so, they increase access to justice by making it possible for potential clients to afford lawyers when they might otherwise have been unable to do so. In other words, when lawyers accept credit cards, they offer their clients much-needed flexibility and convenience.

However, with this ease of payment comes new ethical considerations. Credit cards are a unique form of payment and as is always the case when it comes to any type of legal fee arrangement, transparency and reasonableness are always essential, as recently explained by the New York State Bar Association in Ethics Opinion 1258 (Online: https://nysba.org/ethics-opinion-1258-credit-card-fees-as-an-expense/). 

At issue in this opinion was whether it is ethical for lawyers to pass credit card processing fees onto clients as an expense, and under what circumstances. 

In reaching its determination, the Committee on Professional Ethics first confirmed that lawyers in New York can ethically accept credit cards from clients to pay for legal services as long as the following conditions are met: 1) The legal fee charged is reasonable; 2) The attorney maintains the client's information in strict confidence; 3) The lawyer doesn't let the credit card company influence their independent professional judgment when representing the client; 4) The lawyer informs the client prior to processing the credit card charges, giving the client an opportunity to question any billing discrepancies; and 5) In case of any disagreements regarding the lawyer's fee, the lawyer seeks to obtain a peaceful and quick resolution, and if relevant, follows the fee dispute resolution program set forth in 22 N.Y.C.R.R. Part 137.

Next, the Committee turned to the issue of charging clients the cost of the merchant processing fee. According to the Committee, Rule 1.5(a) of the New York Rules of Professional Conduct, prohibits attorneys from imposing "an excessive fee or expense" on a client. The rule outlines a series of factors, although not exhaustive, to help determine if a fee or expense is too high. The Committee explained that when a lawyer wants to pass a merchant processing fee to a client who uses a credit card for payment of legal services, it is considered an "expense" under Rule 1.5(a), which mandates that an attorney provide written notification to the client about the "fees and expenses" for which they will be accountable.

The Committee concluded that because a merchant fee from a credit card transaction is an “expense,” New York lawyers are permitted to transfer the merchant processing fee to clients who use credit cards to pay for legal services, as long as both the lawyer's fee and the processing fee are reasonable, and the lawyer previously notified the client in writing and received their approval to proceed.

Protecting the interests of legal consumers is essential regardless of the payment method accepted. This opinion, and others like it, play a pivotal role in safeguarding the interests of legal clients. They ensure that regardless of the payment method, the ethical standards of the profession prioritize the rights and interests of clients, reinforcing the fundamental principles of fairness and integrity in legal practice. 

Of course, whether it’s good business to pass processing fees onto clients is a different issue. Just as you may avoid gas stations that charge more for gas, so too may a legal client avoid a law firm that abides by this practice. 

Another option would be that once your firm begins to accept credit cards, consider increasing hourly rates across the board to account for expected credit card processing charges. Either way, your firm gets paid the same amount, but the process is simplified and your client likely will feel less resentment. Ultimately, the choice is yours, and you should do what works best for your firm and its clients.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].