The Uneasy Integration of Law And Technology
Robo-lawyers are on the rise and the development of legal software will face challenges. It will not be easy for a robo-lawyer to completely replace the services of a human lawyer. Not for some time anyway.
The legal profession is steeped in tradition, rules, and regulations.
The Law moves slowly. Technology does not. It is inevitable the two will not easily integrate. While the legal profession is resistant to change, technology changes every industry it touches. And it is shaking up the legal industry in a big way.
Some of the challenges may take some creative thinking to solve.
The Reach of Robo-Lawyers
One challenge for legal AI; its reach. Robo-lawyers have the ability to reach far more people than human lawyers. Or at least those people that have good quality access to the internet.
We have already seen AI providing free or cheap legal advice to fight evictions or parking tickets and bankruptcy. Robo-lawyers can provide services to people that the law has excluded for years. However, AI will not only be used for good but also as a tool to assist law firms in efficiency.
The development of legal AI is inevitable and law firms are either faced with extinction or changing their ways to keep up.
The problem: who will benefit from the development of legal software?
Some people have access to quality internet services and many do not.
The technology divide may widen the justice divide even further unless something is done to enable widespread access to quality internet services.
Some people can only access the internet on their cellphones making their access limited. While indigent members of the community who have no means of accessing the internet will struggle to use robo-lawyers. AI will do little to help them in accessing justice.
The reach of legal AI will also be unequal within the legal profession. While big corporate law firms will have the resources to develop legal software that serves their needs and their clients, smaller law firms will struggle to keep up. Big corporate law firms will develop software that saves time and money for their clients as it would be in their interest to do so. Public interest law firms, that are already underresourced will struggle to invest in legal software that serves the members of the community they assist.
If large law firms are the only consumers, or the only paying consumers, of AI legal services, then these barriers could result in design bias that favors the needs of the types of clients that hire the services of large law firms. Inequalities that marginalize or remove certain lawyers from the AI market could place certain parts of the profession at a competitive disadvantage, to the detriment of large parts of society. Such inequality prevents technology from fulfilling its potential role as “the great equalizer.”- Drew Simshaw- Goergetown University
The Unauthorised Practice of Law
Robo-lawyers are not law firms and the advice they give is not directly provided by lawyers. They are not regulated by a professional body while human lawyers are heavily regulated. Human lawyers are obliged to belong to a professional body and are disciplined by the same body should they act negligently.
Human lawyers have criticized robo-lawyers for not being regulated.
Who holds a robo-lawyer accountable? Currently no one. How do you sue a robo-lawyer should they give you the wrong or negligent advice? There are no mechanisms in place or recourse against robo-lawyers. This may result in robo-lawyers popping up everywhere offering mediocre or bad advice. Is this any different from the human legal profession?
Cody Blades (a lawyer), argues that robo-lawyers like LegalZoom are doing more good then harm and the unauthorised practice of law is merely a technicality:
“The legal community has spoken repeatedly throughout history about the duty that each attorney has to provide services to those that cannot otherwise afford them. Although this ideal has not been met by the legal community, LegalZoom provides an alternative that is working. To block access to legal services because of something as amorphous as “practice of law” statutes is to effectively deny access to legal services to those whom the legal community has neglected: a miscarriage of justice and a failure of the profession’s ethical obligations.”- Cody Blades
The Limits of AI
Robo-lawyers are not endowed with all the qualities of a human lawyer. They are limited by their inability to observe information that cannot be easily quantified.
A human lawyer when preparing for trial and other legal matters does not simply look at the probability of winning and previous cases decided on the same or similar facts. They look at more than hard quantifiable data.
There are many facts that cannot be reduced to a simple figure on a screen. Emotionally sensitive or embarrassing information may be excluded from legal documents. Robo-lawyers do not have the ability to mimic human emotional intelligence and this is an important aspect of running a legal matter in court. Legal AI will need to overcome this to replace a human lawyer entirely.
All communication between a lawyer and its client is privileged information. A lawyer cannot be called to testify against its client. Client information is often sensitive and for these reasons remain confidential. Just like going to the doctor, you do no expect your lawyer to blurt out your legal problem to the whole world.
This is a challenge AI will have to overcome: keeping client information confidential.
The emergence of AI in law practice should fundamentally change the way lawyers think about, talk about, and take measures to protect client confidentiality. This is due in large part to the new ways that client information will be generated, used, stored, and in some cases, comingled with that of other clients. Confidentiality, especially when it comes to new technology, is at the core of a lawyer’s ethical obligations. -Drew Simshaw
In the end…
The practice of law is not without its restrictions and robo-lawyers are currently unrestricted and unregulated. Despite these issues and ethical considerations that will have to be addressed, the development of legal AI is doing more good than harm. Robo-lawyers are addressing problems that human lawyers have not been able to and the development of legal AI should be encouraged and not hindered.
Human lawyers should be using AI to make the practice of law more efficient and also assist in writing guidelines to ensure the ethical practice of robo-lawyers.
“Ethical Issues in Robo-Lawyering: The Need for Guidance on Developing and Using Artificial Intelligence in the Practice of Law” — Drew Simshaw, Associate Professor of Law, Legal Practice- Georgetown University, Hastings Law Journal Vol. 70:173.