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New York Bar Association New AI Guidance: Part 2

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

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New York Bar Association New AI Guidance: Part 2

In last week’s column, I shared news of the recent artificial intelligence (AI) guidance handed down by the New York State Bar Association’s AI Task Force in the “Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence.”

In this lengthy report, the Task Force addressed a wide range of issues, including 1) an in-depth examination of the evolution of AI and GenAI, 2) its risks and benefits, 3) how it impacts society and the practice of law, and 4) ethics guidelines and recommendations for lawyers who use these tools.

Last week we discussed several areas of focus from the report, including data preservation issues and the impact of deepfake evidence on the judicial process. Today we’ll dive into the legal ethics guidance provided in the report.

First, the Task Force considered Rule 1.2 and the scope of representation. It explained that if you will be using generative AI in the course of handling a matter, you should consider including a statement to that effect in your engagement letter, which your client should acknowledge receiving. 

The following sample language was suggested: “Use of Generative AI: While representing you, we may use generative AI tools and technology to assist in legal research, document drafting, and other legal tasks. This technology enables us to provide more efficient and cost-effective legal services. However, it is important to note that while generative AI can enhance our work, it is not a substitute for the expertise and judgment of our attorneys. We will exercise professional judgment in using AI-generated content and ensure its accuracy and appropriateness in your specific case.”

Diligence pursuant to Rule 1.3 was also addressed. The Task Force emphasized that as part of due diligence, lawyers must determine the benefits and drawbacks of using AI tools for a specific case. 

Next, the Task Force turned to Rule 1.4 and cautioned that lawyers should not rely on AI tools to replace client communication. Certainly, lawyers can use the tools to “assist with generating documents or responses” but the duty to ensure an open and clear line of communication lies with attorneys who must “maintain direct and effective communication with…client(s) and not rely solely on content” created by AI.

The impact of AI usage on legal fees under Rule 1.5 was also considered. The Task Force emphasized that AI-driven efficiency gains - or unrealized gains resulting from the failure to use this technology - should be taken into account when determining what constitutes a “reasonable” fee. Additionally, engagement letters should include mention of any surcharges billed to clients: “If you will add a ‘surcharge’ (i.e., an amount above actual cost) when using specific Tools, then you should clearly state such charges in your engagement letter, provided that the total charge remains reasonable.”

The Task Force also advised that the confidentiality requirements of Rule 1.6 apply when using AI software. Lawyers should obtain client consent to use these tools and have a continuing duty to ensure that providers will protect confidential data and keep each client’s data segregated and protected.

Next, the Task Force considered Rules 5.4 and 5.5, which require lawyers to exercise personal independence and prohibit them from relying solely on AI-produced output without reviewing and carefully considering the results. AI tools “should augment but not replace your legal work.”

The Task Force opined that because AI may increase efficiency significantly, it also has the potential to increase the “amount and scope of the pro bono legal services” that lawyers can provide. As such, under “the application of Rule 6.1, you are encouraged to use the Tools to enhance your pro bono work.”

Another ethics issue that the Task Force discussed was advertising and the requirements of Rule 7.1, which mandate lawyers to carefully oversee all AI-created content publicly posted on their behalf. Attorneys must ensure that it is “truthful and non-deceptive.”

Finally, the Task Force cautioned that Rule 7.3 requires avoiding AI software usage when generating “phone calls, chat board posts or other forms of solicitation” whether made by the attorney or someone else on their behalf.

This guidance should serve as encouragement to use these tools, not discouragement. The Task Force has provided comprehensive guidance to assist in integrating these tools into law practices. Rather than replacing the nuanced judgment of attorneys, AI improves their ability to represent clients effectively by increasing the efficiency and scope of legal services delivered. 

In other words, take advantage of all these tools have to offer. Follow the Task Force’s recommendations, embrace your duty of technology competence, and begin learning about generative AI today.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software and LawPay payment processing, AffiniPay companies. 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].


New York Bar Association New AI Guidance: Part 1

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

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New York Bar Association New AI Guidance: Part 1

It’s been just over a year since OpenAI unleashed ChatGPT Plus powered by GPT-4 into the world, and things haven’t been the same since. From deepfake videos and sophisticated scams powered by generative artificial intelligence (GenAI) tools to lawyers making headlines for citing fake case citations obtained from GenAI requests, this technology is dramatically altering the way that lawyers - and swindlers - achieve their goals. 

Bar association ethics committees have been trying to keep up, with California, Florida, and New Jersey leading the way, having issued GenAI guidance for lawyers. Most recently, New York jumped into the fray on April 6, releasing the lengthy 91-page “Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence.” 

This far-reaching report provides: 1) an in-depth examination of the evolution of AI and GenAI, 2) its risks and benefits, 3) how it impacts society and the practice of law, and 4) ethics guidelines and recommendations for lawyers who use these tools.

Today we’ll focus on broader issues addressed in the report that impact the legal profession and courts and will cover the legal ethics guidance in the next column.   

One reason for the report’s breadth is that it isn’t limited to the ethics issues presented by GenAI usage in the legal profession, and instead touches on the many other legal implications that arise when lawyers incorporate these tools into their daily workflows. According to the Committee, there are a number of notable issues attorneys should consider when utilizing ChatGPT and other similar generative AI tools. 

First, when choosing a provider, a thorough understanding of licensing information, the terms of use, and applicable privacy policies is required. Lawyers should also determine what happens to data input into a GenAI tool. Will the provider use that data to train or refine their AI model? Will the provider allow third parties to access that data to train or improve their AI model? Are data inputs protected and stored in an encrypted, closed environment that anonymizes queries and prevents third parties, including opponents and adversaries, from accessing them?

The Committee also addressed the data preservation implications triggered when legal professionals use GenAI to prepare a case for litigation. According to the Committee, “If the data that is inputted into the AI application is temporary/ephemeral, but also relevant and responsive to the litigation, parties have the duty to preserve this electronically stored information.”

Finally, another important topic included in the report was the impact of GenAI-created deepfake evidence and its impact on trials. The Committee acknowledged the challenge presented by synthetic evidence, explaining that “(d)eciding issues of relevance, reliability, admissibility and authenticity may still not prevent deepfake evidence from being presented in court and to a jury.”

According to the Committee, the solution to this problem — and to all issues presented by the impact of GenAI on the practice of law — is education. Lawyers, law students, judges, and regulators must take steps to ensure they fully understand this technology and how existing laws and regulations apply to it. 

Importantly, the Committee emphasized that this new technology is no different than the ones that preceded it, and thus “(m)any of the risks posed by AI are more sophisticated versions of problems that already exist and are already addressed by court rules, professional conduct rules and other law and regulations. Furthermore, many risks are mitigated through understanding the technology and how AI will utilize data input into the AI system.” 

In other words, embracing technology, not fearing it, is the only path forward. Adapting and learning about these tools is essential for maintaining efficacy and relevance in a technology-first world. Of course, GenAI adoption must be done ethically, and the Committee provided lots of helpful guidance in that regard. We’ll learn more about that in my next column when we explore the ethical implications outlined in the report, so stay tuned.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software and LawPay payment processing, AffiniPay companies. 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].

 

 

 




 


ABA Legal Profession Report Part 2: Demographics and Technology

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

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ABA Legal Profession Report Part 2: Demographics and Technology

If you ask a generative artificial intelligence (AI) tool to provide a picture of lawyers, judges, or law students you’ll likely find the image produced will include groups of white men, with very few women or people of color. This is because the data these tools rely on includes the entirety of the internet, which necessarily reflects the biases of our culture.

However, these AI biases do not capture the significant demographic shifts our profession has seen in recent decades. Caucasian men are no longer the majority in law schools, with more women and people of color graduating than ever before. 

Despite these advances, data from the 2023 ABA Legal Profession Report reveals that men still dominate law firms’ upper ranks, mirroring AI-generated stereotypes.

In addition to demographic data, the report also includes notable statistics on technology adoption in the legal industry. Like lawyer demographics, change is occurring, but not as quickly as desired. 

I'll discuss key findings below, which illustrate that shifts in demographics and technology signal a profession in flux.

According to the report, there were 1,331,290 active lawyers last year, marking a 5% increase over the past decade. A substantial number of those lawyers (27%) were found in two states: New York (188,341) and California (170,959). Only 39% of lawyers were women, up from 24% in 2013. The median age was 46 years.

During that same timeframe, the percentage of lawyers of color nearly doubled in the past decade, increasing from 11% to 21%. 

The makeup of judges was similar. Sitting federal judges were predominantly male (68%) and white (76%). In state high courts, only 20% percent of justices were people of color (compared to 40% of the general population), and 58% were men (compared to 50% of the population).

Turning to the technology data, adoption rates are slower in some cases. For example, smart assistants like Amazon’s Alexa are rarely used by lawyers, with only 9% reporting usage, and 3% doing so regularly. Similarly, only 8% of lawyers shared that they had a virtual law practice.

However, social media usage, once frowned upon, has become commonplace. The vast majority of law firms (89%) now have a social media presence. Not surprisingly, the most popular social media network was LinkedIn at 87% followed by Facebook at 62%. X, formerly Twitter, ranked low with 38% of firms using it, as did Martindale (37%).

Individual usage followed suit, with 82% of lawyers reporting they interacted on social media platforms for professional purposes. LinkedIn ranked first with 96% using it, followed by Facebook (31%) and X (20%).

Another notable statistic was that the majority of lawyers now use laptops as their primary computer. 56% reported using laptops in 2022, up from 53% in 2021. Windows was the preferred operating system with 83% of lawyers using it. A mere 6% of lawyers reported that they used Mac operating systems. 

Legal research was one of the main things lawyers used computers for, with lawyers spending 18% of their time conducting research. Westlaw/Westlaw Edge was the most popular platform (69%). Lexis/Lexis+ was next at 42%. The top free legal research sites were government websites (63%), FindLaw (56%), and Cornell’s Legal Information Institute (54%).

Finally, there is a clear smartphone brand preference in our profession, with 80% of lawyers sharing that they use iPhones. 

The 2023 ABA Legal Profession Report evinces a profession in the midst of significant change, both demographically and technologically. Despite the notable trend toward greater diversity in law schools, our profession nevertheless remains top-heavy with white men. 

On the technology front, the legal industry is embracing change at a predictably cautious pace, with increasing adoption of more familiar technologies like social media and mobile devices. 

These developments, while sometimes frustratingly slow-paced, signal a complex but progressive path toward a more inclusive and technologically adept legal profession. Hopefully, sooner rather than later, the pace of change will increase, resulting in more diverse and tech-savvy lawyers.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software and LawPay payment processing, AffiniPay companies. 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].

 


ABA Legal Profession Report Part 1: Wages, Pro Bono Work, and Mental Health

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

*****

ABA Legal Profession Report Part 1: Wages, Pro Bono Work, and Mental Health

The legal profession is in the midst of significant change, with technological advancement driving much of it. Firms are becoming more efficient, impacting the structure of law firms, the day-to-day work performed, and even the pricing of legal services. The shifting landscape presents challenges that can make acclimation to rapid change difficult in the absence of perspective.

That’s where the 2023 American Bar Association Profile of the Legal Profession Report comes in. Released at the end of 2023, it offers a deep dive into key data points about the legal profession including demographics, technology usage, and lawyer well-being, 

I plan to cover some of the most interesting findings in this 2-part series. In today’s article, statistics about earnings, pro bono services, and mental health will be examined while notable demographics and technology findings will be explored in Part 2.

Now let’s dive into the data, starting with attorney wages. Overall, salary increases in recent years have occurred at respectable, albeit varying, rates, which were largely dependent on a lawyer’s position within a firm and the industry overall.

According to the report, the average wage was $163,770 in 2022. Notably, during the twenty years leading up to 2022, salaries increased by 55%, a slightly lower rate than inflation, which increased by 59%.

First-year associates have fared well, with the last two years seeing a 21% wage increase of $35,000. The average salary rose from $165,000 in 2021 to $200,000 in 2023. Not surprisingly, entry-level lawyers in private firms fared far better salary-wise than those in public service, earning a median salary of $200,000 compared to the $57,500 to $63,000 earned by public service attorneys.

Unfortunately, many young attorneys are also saddled with significant educational debt. The data showed the average student loan debt amounted to $120,000 for education expenses related to law school and undergraduate education.

Moving on to pro bono data, we learned that 52% of attorneys provided pro bono services during the previous year, and on average worked 37 hours. The most common practice areas were family law, criminal law, litigation, estate planning or probate, and real estate. The tasks most likely to be performed ran the gamut and included providing advice (74%), reviewing or drafting documents (66%), interviewing clients (64%), writing letters (36%), working with other attorneys (35%), providing full representation in court (29%) and settlement negotiation(18%).

Finally, let’s take a look at the mental health statistics from the report, which were illuminating and troubling. One concerning trend evinced was that 8.5% of lawyers think about suicide compared to 4.3% of the general population. This percentage increases as age decreases, with over 14% of junior associates reporting suicidal thoughts compared to 7% of senior associates, 8% of junior partners, 6% of senior partners, and 7% of managing partners.

Gender also impacted the mental health data, with 9.1% of men and 7.8% of women lawyers having suicidal ideations. Notably, however, women were also more likely to report feelings of severe or moderate stress (67% vs. 49%), anxiety (23% vs. 15%), and depression (20% vs.15%) than their male counterparts. 

The report also highlighted the high incidence of sexual harassment and assault experienced by women attorneys, with 50% sharing they’d experienced unwanted sexual conduct in the workplace. One-quarter of women shared that they feared retaliation and thus failed to report the unwanted contact, and another 16% lost work opportunities after declining sexual advances.

Given these data points, it’s not at all surprising to learn that women lawyers were more likely to partake in hazardous drinking (34% vs. 25%) and were also more likely to consider leaving the profession because of the negative mental health effects experienced (24% vs. 17%).

From the wage, pro bono, and mental health data, it’s clear that practicing law has many benefits, and many drawbacks as well. The mental health statistics are particularly troubling and highlight key areas that need to be addressed. Tackling these issues will be challenging given the many other changes occurring in our profession, some of which I’ll cover in my next article, that have the potential to dramatically impact the practice of law. 

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].