Sui Generis--a New York law blog

Chat GPT 101 for Lawyers: The Upsides — and Downsides

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Chat GPT 101 for Lawyers: The Upsides — and Downsides

There’s a new technology making waves that should be on your radar if it isn’t already: ChatGPT. The reason you should familiarize yourself with it is because all signs indicate that this cutting-edge artificial intelligence (AI) technology and other tools like it will have a significant impact on the practice of law.

ChatGPT is an artificial intelligence language model that generates human-like responses to natural language queries. The reason ChatGPT has made such a splash is because it can understand and respond to a wide range of questions, and then provide near-instantaneous responses, which include generating documents. For example, I asked it to draft a demand letter, an NDA, and an employment agreement, and the documents it created were very workable rough drafts.

It’s available as a standalone chatbot, and there’s a free version available. After test-driving it, you may want to sign up for ChatGPT Plus, which costs $20/month and offers consistent uptime and prioritized access to new features. And, as I discuss below, ChatGPT is already being incorporated into legal technology products, so you’re likely to encounter it one way or another sometime soon.

The reason everyone is talking about ChatGPT is because it holds incredible potential. Its output is fast and often impressive, and when ChatGPT works well, it’s mind-boggling. 

However, its drawbacks are significant. It often makes up facts and then serves them up in a way that sounds completely believable. In one case, I asked it to draft a LinkedIn post about an article in which I was quoted, and it created a quote out of thin air. In another, the response provided seemed on point at first glance but referenced a non-existent California legal ethics provision.

So while the current version undoubtedly provides value to lawyers, it’s important to have working knowledge of the issues being queried along with the ability to weed out false information. That being said, in the very near future the accuracy of its output will undoubtedly increase exponentially as new versions are released. 

Notably, it’s already making its mark in the legal industry. A number of legal technology companies have begun to incorporate ChatGPT into their platforms, including Ironclad (“AI Assist” generates redlined versions of contracts and more), DocketAlarm (its ChatGPT integration provides three-bullet-point summary of docket documents), and Lexion (offers a ChatGPT Word plugin that assists with contract drafting).

The bottom line: ChatGPT isn’t yet ready for prime time, but it’s a great way to begin your work. ChatGPT and tools like it are the future, although they are admittedly a work in progress. Even so, as part of your duty of technology competence, you should learn about them so that you can make an educated decision as to whether and how to use them in your law practice. Because like it or not, the majority of lawyers will be using ChatGPT on a daily basis, sooner rather than later. 

But don’t my word on it; let’s see what ChatGPT has to say about its impact on the legal profession. When I asked ChatGPT how it will impact the practice of law, this is what it had to say: “ChatGPT will impact law practices in the very near future by offering AI-powered legal research assistance, document drafting, and contract analysis tools that can save lawyers significant amounts of time and effort. ChatGPT can also help lawyers improve their legal writing skills by providing suggestions for clearer and more concise language. As AI technology continues to improve, ChatGPT will become an increasingly valuable tool for lawyers looking to streamline their workflows and improve the quality of their work.”

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software, an AffiniPay company. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at [email protected]

ABA Ethics Committee on Copying Clients on Emails to Opposing Counsel

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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ABA Ethics Committee on Copying Clients on Emails to Opposing Counsel

In a few of my recent columns, I've addressed the many issues encountered when lawyers use electronic forms of communication. Among them are the host of security and ethical issues encountered when lawyers use email to communicate with their clients. Notably, there’s a reason I keep writing about this topic: in recent months, ethics committees from multiple jurisdictions have handed down opinions focused on these very issues.

Most recently, I discussed a New City Bar Association ethics opinion, Formal Opinion 2022-3. At issue in this opinion was whether it is ethical for lawyers to cc or bcc their clients on emails sent to other attorneys. The Committee on Professional Ethics explained that this common practice triggers several ethical concerns and advised lawyers to think twice before copying clients on an email.

One situation that the New York City Ethics Committee addressed was whether lawyers should bcc “their client on an email with other counsel and the client then replies to all.” The Committee joined other jurisdictions in concluding that in that situation, the attorney of the client who has been bcc’d “has not impliedly consented, without more, to other counsel’s contacting the attorney’s client.”

The American Bar Association addressed this same issue a few weeks ago in Formal Opinion 503.

The ABA Committee considered the issue of implied consent when bcc’ing a client and reached a result that differed from that of several ethics committees, including the New York City Ethics Committee. 

The ABA Committee explained the rationale for its departure was grounded in providing clarity for lawyers seeking ethical guidance: “Several states have answered this question in the negative, concluding that sending lawyers have not impliedly consented to the reply all communication with their clients. Although these states conclude that consent may not be implied solely because the sending lawyer copied the client on the email to receiving counsel, they also generally concede that consent may be implied from a variety of circumstances beyond simply having copied the client on a particular email….This variety of circumstances, however, muddies the interpretation of the Rule, making it difficult for receiving counsel to discern the proper course of action or leaving room for disputes.”

According to the ABA Committee, a clear-cut rule was required in order to remove any doubt and ensure that lawyers clearly understood how to proceed when copying clients on emails: “In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s ‘reply all’ to the communication.”

Next, the Committee provided lawyers seeking to share emails with their clients with alternative mechanisms: “(U)nless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.”

While the ABA Committee’s intent is to provide clarity, its determination is at odds with the conclusions reached in other jurisdictions. As a result, lawyers are faced with conflicting conclusions about the proper use of email, and unfortunately, I fully expect things to get worse as more jurisdictions address the landmine of ethical issues presented by email communications with clients.

As far as I’m concerned, the writing is on the wall: email is outdated, and lawyers should consider using more secure electronic communication methods, such as client portals, in order to protect client confidentiality and avoid ethics violations. There are better, more secure electronic communication methods available, and I would strongly recommend making that transition sooner rather than later.

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at [email protected]

NY Makes Notaries More Accessible By Passing Online Notary Law

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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NY Makes Notaries More Accessible By Passing Online Notary Law 

Over the past few years, there has been a significant transformation in the way that work gets done. Hybrid and remote work has become commonplace, resulting in a growing need for new and innovative approaches to conducting business online. How we work is evolving, and in many cases, the changes will be permanent.

One example of this evolution is online notarization. During the pandemic, steps were taken to facilitate various types of remote work, including the passage of temporary regulations that permitted documents to be notarized remotely using online tools like videoconferencing software. 

As the effects of the pandemic recede, some states have taken steps to extend the temporary regulations by passing laws that establish permanent online notary procedures. These newly codified laws have the potential to revolutionize the way that legal professionals work, making it easier than ever for lawyers to practice law from any location.

Most recently, New York enacted new rules regarding online notaries on February 1st. Executive Law Section 135-c was passed and authorizes notaries to perform electronic notarial acts as long as they registered with the Department of State and comply with the newly promulgated rules. The notary must be located in New York when the documents are signed, but the signer may be located elsewhere.=

The new law defines electronic notaries as “a notary public or notary who has registered with the secretary of state the capability of performing electronic notarial acts in accordance with section 135-c of the Executive Law and this Part.”

Under this law, notaries must identify remote document signers in one of three ways: 1) the notary may have personal knowledge of the signer; 2) the notary may use technology that allows for the signer to provide an official, acceptable form of proof of identity; or 3) by taking the oath or affirmation of a witness who personally knows the signer, where the notary either personally knows or is able to identify said witness as a result of previous remote identification verification.

Once the document is signed, the law requires notaries to enter into a journal the notarial act performed and the type of identification provided. Journal records must be retained for 10 years after completion of the notarial act, as does the audio-visual recording of the notarization, along with a backup recording. 

I’ve advocated for the increased use of cloud-based technology in the legal profession for over a decade now, and from my perspective, the rapid uptick in its adoption driven by pandemic forces has been nothing short of miraculous. The passage of this regulation and others like it is a wonderful step forward and a heartening sign of things to come.

That being said, there have been some legitimate issues raised regarding the long-term effects of this new law. First, the complexity of the procedural requirements has been criticized. Second, the required length of the record-keeping requirements has been perceived as unduly burdensome, especially as it relates to the electronic data. 

Finally, there are concerns about the long-term impact that this new law will have on the availability of notaries. The fear is that the 24/7 online availability of electronic notaries will reduce the demand for in-person notaries locally, while the stringent and oppressive record-keeping requirements will dissuade people from becoming electronic notaries in the first instance. 

Only time will tell whether this prediction comes to pass. In the short term, however, this new law will have a beneficial effect, and people seeking a notary will have increased  flexibility and more options available to them. As far as I’m concerned, the immediate benefits outweigh the potential negative impact down the road, and I have faith that any issues with the law as promulgated will ultimately be ironed out over time

Nicole Black is a Rochester, New York attorney, author, journalist, and Senior Director of SME and External Education at MyCase legal practice management software. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-author of "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authored "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]

Nicole Black is a Rochester, New York attorney, author, journalist, and the head of SME and External Education at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at [email protected]