How Artificial Intelligence Is Reshaping Legal Practice
The advancement of technology employing artificial intelligence (or “AI”) and machine learning evokes growing concerns about workplace automation and potential displacements to not only blue-collar workers but also to their susceptible white-collar counterparties such as highly educated lawyers and doctors. Scholars have long predicted a jobless future and “the end of work” subject to the impact of technology on labor market. This article first discusses definitions of AI, then explores how AI impacts employment in the legal sector, and lastly examines legal issues associated with the application of AI.
What Is AI?
The term “artificial intelligence” originated in 1956. Figure 1 (below) collects eight definitions of AI across four categories. The definitions on the left measure success regarding fidelity to human performance and those on the right measure rationality (i.e., performance). The definitions across the top of the figure measures thought process and those at the bottom address behavior. Although the definitions are vague and may vary, the term AI is generally concerned with the automation of intelligent behavior through computer processes. According to the Legal Information Institute of Cornell Law School, artificial intelligence is the “use of machine learning technology and algorithms (the automated computational application of rules) to perform tasks, to make rules and/or predictions based on existing datasets.”
AI as a Legal Person?
Given AI’s increasingly sophisticated performance, it is becoming continuously important to address the question of whether AI should possess legal personhood. AI has the capacity to operate without human intervention yet despite its autonomous nature, it is arguable that the output produced can be attributed to the person who created the AI. New rules and regulations have been called for whether a lawyer robot can be responsible for its acts or omissions or whether outcomes are to be attributed to the creator or user of AI. The European Union recognizes the necessity to consider AI’s legal personhood:
“whereas in the scenario where a robot can take autonomous decisions, the traditional rules will not suffice to activate a robot's liability, since they would not make it possible to identify the party responsible for providing compensation and to require this party to make good the damage it has caused”
Employment Effects of AI in the Legal Industry
aThe advancement of technology employing artificial intelligence (or “AI”) and machine learning evokes growing idely accepted that AI does a better job than human lawyers at processing vast amounts of data with accuracy and speed. John McGinnis and Russel Pearce have argued that the ability of AI to conduct legal work, sucah as document discovery, legal research, and case predictions, will reduce demand for lawyers significantly. Nonetheless, Milan Markovic challenges the notion that lawyers will be replaced by AI.
In order to understand the possibility that automation has of providing services equivalent to legal practitioners, it is important to review how lawyers in law firms distribute their time across tasks. According to data from Sky Analytics, a consulting firm analyzing corporate clients’ legal expenditures, practicing lawyers’ time allocation can be categorized into thirteen tasks: document management, case administration and management, document review, due diligence, document drafting, legal writing, legal research, legal analysis and strategy, fact investigation, advising clients, negotiation, other communications and interactions, and court appearances and preparation.
Among these tasks, AI has weak employment impact on client counseling, fact investigations, negotiations, court appearances and preparations. These tasks require significant human interaction, unstructured communications and emotional intelligence that are beyond the capabilities of modern intelligent machines. For example, an effective negotiation requires lawyers to read a counterparty’s body languages and facial expressions and allows for flexibility for lawyers to respond to an opponent’s negotiation strategies. Additionally, one responsibility of an attorney is to safeguard the social interest of the public when it is in conflict with their client’s unlawful desires. A computer can only identify whether the conduct of a client is illegal, but it cannot function as a gatekeeper to persuade the client because intelligent machines lack emotional intelligence and moral authority and cannot buttress legal and non-legal considerations to exhort clients to act in accordance with the law.
Issues Associated With the Application of AI
The rise of AI in legal practice poses questions of what constitutes unauthorized practice of law. For example, LegalZoom filed a complaint in North Carolina seeking affirmation of their right to provide legal service to the State. The bar association counterclaimed that LegalZoom was engaged in unauthorized practice of law. LegalZoom, through its website, www.LegalZoom.com, offers two services: (1) a legal document preparation service; and (2) in those states where permitted, prepaid legal service plans. However, LegalZoom’s services are subject to the following limitations:
(b) An attorney licensed to practice law in the State of North Carolina has reviewed each blank template offered to North Carolina Consumers, including each and every potential part thereof that may appear in the completed document. The name and address of each reviewing attorney must be kept on file by LegalZoom and provided to the North Carolina Consumer upon written request;
(c) LegalZoom must communicate to the North Carolina Consumer that the forms or templates are not a substitute for the advice or services of an attorney;
In conclusion, technology is undoubtedly reshaping the legal industry. AI is capable of benefitting legal practitioners by freeing them of unrewarding and repetitive work and allowing them to focus on irreplaceable core duties such as advising and advocating for clients. As such, lawyers should navigate this collaboration of law and technology and incorporate AI into their practice.
Zixuan Luo is an LL.M. candidate at NYU and serves as a Graduate Editor of the NYU Journal of Law & Business. Zixuan is licensed to practice law in China and, prior to attending NYU, she practiced for almost four years at two prestigious financial institutions in Hong Kong. Her practice is focused on Banking & Finance, OTC Derivatives and Structured Products.