By Jim Calloway and Julie Bays 

This summer’s program, “Artificial Intelligence: Shaping the Future of Law Practice,” was held in conjunction with the OBA Annual Meeting. It had good attendance and featured several experts who provided excellent educational content.

First impressions are important. The first impression many lawyers had of generative AI tools was learning that a lawyer in New York got into a lot of trouble using ChatGPT to research and write a brief for him. This was followed by several similar reports of other lawyers having the same issues. Even though the headlines stated that these lawyers were sanctioned for using AI, a deeper look reveals that the lawyers’ conduct also involved cover-ups and false statements to the court.

New York lawyer Steven Schwartz used ChatGPT to find some court opinions supporting his client’s claim that he had been unable to locate. When opposing counsel filed for sanctions, saying the cases didn’t exist, Mr. Schwartz went back to ChatGPT, which assured him the fictitious cases were valid law. He filed his response without checking another legal research service.

Even more problematic was the case of Colorado lawyer Zachariah Crabill. When the judge asked him about possible inaccuracies in a brief, he blamed his legal intern. Six days after that hearing, he filed an affidavit stating he used ChatGPT to draft the brief. The lawyer’s conduct resulted in a suspension. 

THE MOST IMPORTANT TAKEAWAY

Ben Schorr, a senior content program manager from Microsoft, discussed Microsoft AI tools, focusing on Copilot. He also provided the best advice about properly using generative AI when he said, “Never show anything generated by AI to a client or court without first carefully reviewing it.”

Now that we can all appreciate that generative AI tools can sometimes hallucinate facts and provide quotations from nonexistent written court opinions, it seems like this is the most important rule. As we have noted before in this space, one transformation of our work that AI and other automation tools will likely cause is reducing the amount of drafting by lawyers and increasing the time proofreading drafts, as first drafts are created by AI, automated document assembly or a trusty intern. 

DON’T COMPROMISE CLIENT CONFIDENTIALITY WITH YOUR PROMPTS

AI tools are voracious consumers of data. Your search queries with AI are called prompts. Some AI systems ingest your prompts and add them to their database, generating a remote possibility that they will be used again in a response to another user. Even though the risk is low, lawyers should understand how their prompts are retained and used. For example, ChatGPT will reuse prompts, but it also provides a setting where you can restrict it from reusing any of your content. Lawyers will want to turn that setting on. 

MICROSOFT COPILOT IS USEFUL AND FITS INTO EVERY LAWYER’S BUDGET

We are fans of Copilot, as it is an affordable AI tool for the many lawyers already using Microsoft 365. Plus, it is designed to keep important information confidential because many businesses require secrecy, not just in the legal profession.

A Copilot for Microsoft 365 subscription is $360 per user for one year of service. A business class Microsoft 365 subscription is required to qualify. You can limit Copilot subscriptions to those who will use them. While there is no free trial, a chatbot on the Microsoft website told me that any Microsoft license can be canceled within the first seven days for a full refund.

Microsoft Copilot will provide answers based on everything contained in your Microsoft graph. This means everything in OneDrive, Word documents, Outlook emails and files, PowerPoint presentations and Excel spreadsheets. Microsoft guarantees that none of your queries will be used to train the system or allowed to leave your system. This is important for preserving client confidentiality, and that makes it one of the safest tools to use. One should appreciate that Microsoft 365 already houses billions of dollars of personal and corporate data, much of which should be kept confidential.

Microsoft also labels its free browser-based AI service Copilot. So that can be confusing. But, while the service can be useful and a good way to experiment with AI, one should not rely on it for confidential treatment of your prompts. 

FOR MANY LAWYERS, THEIR PRACTICE MANAGEMENT SOLUTION’S EMBEDDED AI TOOLS MAY BE THEIR BEST OPTION

Many lawyers subscribe to an online practice management tool that manages client information. It is not an exaggeration to say that all these providers are working on adding AI functionality to their offerings. AI features integrated within the practice management solution means there is already access to all the client information and documents stored in the solution. This makes them more convenient and simpler than using separate AI tools or services, particularly for automated document assembly.

Jordan Turk, an attorney and legal technology advisor for Smokeball, discussed Smokeball’s AI-powered features that help lawyers automate tasks and streamline workflows. All attendees can now appreciate the benefits of AI within their practice management solution. The AI tools demonstrated had not yet been released to users, but they have been released since. To her credit, she also noted the status of various competitors’ AI development.

THERE ARE MANY AI TOOLS TO PLAY WITH TO ACQUIRE AI FAMILIARITY

The key takeaways from the AI tools presentation by Catherine Sanders Reach, director of the North Carolina Bar Association Center for Practice Management, and Julie Bays centered on the critical importance of hands-on experience with AI tools for lawyers. It was emphasized that to grasp the capabilities and limitations of AI, attorneys need to actively engage with these technologies. Our “learn by doing” approach is crucial as AI rapidly evolves and integrates into various aspects of legal work. To facilitate this, we introduced several user-friendly AI platforms lawyers can easily begin experimenting with, such as ChatGPT, Google Gemini and Claude.

We intended to make AI tools more approachable by emphasizing their accessibility, reducing the reluctance lawyers might have toward integrating AI into their work. We also explained the distinctions between AI-augmented search engines and specialized AI instruments to offer lawyers a clearer picture of the array of AI options they can employ in various legal tasks.

We also discussed Descript, an AI-powered video editing tool that allows for editing through text transcripts. Clearbrief was highlighted as a powerful subscription tool for strengthening legal writing by finding relevant evidence to support arguments. For content creation, we noted Copy.ai, which can assist with writing blog posts and website copy. Microsoft Designer was presented as a free multimedia graphic design tool that leverages AI to generate and manipulate images. 

COURTS AND COUNSEL WILL HAVE TO DEAL WITH AI FAKES

However, while AI can be a powerful tool for lawyers, it can also pose a serious threat to the integrity of the legal system. AI can create fake documents, pictures and other evidence that can fool courts and counsel alike. As we have seen, AI fakes (aka deepfakes) can manipulate or synthesize digital content to make it look realistic and authentic. Right now, tools to create convincing deepfakes are still emerging. There is no doubt they will become more common and easier to use.

Even if your client has no ill intentions, many people routinely edit images to improve appearances or remove distracting background images or people. We recall a certain British royal who created controversy by inexpertly editing a photo of herself and her children. Lawyers will probably want to advise clients who take pictures that might be entered into evidence to never edit them in any way. We will leave it to the litigators to argue about whether and when an “enhanced” photo is admissible. 

AI MEANS BUSINESS

From the OU College of Law, we heard from Kenton Brice, director of the Donald E. Pray Law Library, and Sean Harrington, director of technology and innovation, on the business impacts of AI.

Their presentation highlighted the current state and the future of AI in the legal industry, emphasizing several key points. They discussed the integration of AI in major legal research platforms, noting that Lexis+ is set to release a new AI platform by the end of the summer, which will require an additional subscription. Similarly, Westlaw is integrating CoCounsel by Casetext into their platform, enhancing remote task initiation capabilities through apps. They also pointed out the rise of new startups and companies, like vLex Fastcase, which are challenging the traditional dominance of Lexis and Westlaw.

They emphasized the significant economic and productivity impacts of generative AI, suggesting it could add between $2.6 trillion to $4.4 trillion annually. AI agents, capable of automating complex legal tasks – such as drafting documents, performing legal research and managing client communications – were highlighted as a major advancement. They also addressed ethical concerns, particularly regarding AI agents pretending to be human to complete tasks. 

ETHICAL CHALLENGES WITH AI

Despite the number of lawyers who have received sanctions associated with improper AI use, AI isn’t particularly ethically challenging if proper care is exercised. It is new and different, so study is required. OBA General Council Gina Hendryx and Jim Calloway discussed various ethical issues associated with AI. Ms. Hendryx noted that as some courts now require AI usage affidavits, if you are practicing in an unfamiliar court, you should determine in advance any requirements.

Just remember that most lawyers who ran into trouble violated one of our profession’s most cherished and timeless values: candor with the court.

If you missed it in a recent Courts & More, two ethics committees (ABA and Pennsylvania/Philadelphia) have issued detailed opinions about ethical compliance with AI. Links to both opinions are available at https://bit.ly/46QPDFW. 

CONCLUSION

Most observers believe AI will produce transformational changes in many business operations. Because the nature of much legal work involves the creation, management and analysis of documents, many believe it will particularly affect the legal profession. As we see AI tools being incorporated into everything we use, it will be interesting to see how things evolve over the next few years.

Mr. Calloway is the OBA Management Assistance Program director. Need a quick answer to a tech problem or help solving a management dilemma? Contact him at 405-416-7008, 800-522-8060 or jimc@okbar.org. It’s a free member benefit.

Ms. Bays is the OBA practice management advisor, aiding attorneys in using technology and other tools to efficiently manage their offices.

Originally published in the Oklahoma Bar Journal — September, 2024 — Vol. 95, No. 7