Over the last year, we have been inundated with stories about the risks, benefits and effects of using artificial intelligence (AI) in the workplace generally and as lawyers, specifically. We all read about the New York lawyers who were sanctioned for submitting a legal brief that included six fictitious case citations generated by ChatGPT. We have been cautioned by courts and others about the dangers of relying on AI, some courts are even requiring disclosure of AI usage by attorneys when making a written submission. However, technology and AI have played active roles in legal research and writing for years. Research platforms, such as Westlaw, integrate AI technology in its searching capabilities, and both Westlaw and Lexis have invested substantially to further develop AI products such as Lexis+ AI which assists with legal drafting. In the discovery context, e-discovery platforms use, and have used for years, technology-assisted review (TAR) in the document review process, which uses techniques such as predictive coding (the ranking of documents based on how potentially relevant they are to the matter), filtering and email threading to automate and streamline parts of document review. Technology is here to stay and its role in how we lawyer will only grow. But it is important that we as lawyers learn how to use and embrace existing and future technology responsibly without shirking our professional and ethical responsibilities.

Recently, I was involved in a case with an extensive inadvertent privilege disclosure issue. While no lawyer is perfect and mistakes happen, our generation of lawyers has been given technological gifts that, when taken advantage of and used correctly and appropriately, can help prevent inadvertent disclosures and other such mistakes. In the case of this disclosure, most if not all vendors have tools you can use to identify and segregate privileged documents and double check to ensure no privileged documents have been inadvertently left within the production set. More generally, TAR can be used to predict and code countless documents at a time, greatly decreasing the length of time needed to review and code documents. As lawyers, we should embrace technological advances and use them responsibly and ethically to our advantage during e-discovery and elsewhere in our practice. Those that don’t may be face an immense disadvantage in the future as technology advances further.

In preparing for the future and for additional AI advancements in the legal industry, it is important for lawyers to stay informed on the technology being implemented by their e-discovery and research vendors. Lawyers should:

• Proactively ask for information from their vendors in order to understand what AI is being used and how information is being verified;
• Seek vendors who are transparent about the technology they use and how they use it, providing you with the training you require to feel comfortable using and defending their systems;
• Be mindful to safeguard and segregate any privileged, confidential or secret information – both during e-discovery and during the research and writing phase;
• Stay informed on developments as advances are made so you can determine for yourself what technology you feel comfortable employing ethically within your practice; and
• Continue to educate yourself and monitor changes in your ethical and professional duties and responsibilities by staying on top of changes in rules, procedures and guidelines as established by the courts in which you practice.

Recent developments in technology and the advancements on the horizon can be powerful tools in our ability to access, digest, explore and utilize information for our client’s and our own professional benefit. Technology is not going anywhere, and its effect on our profession and others will only continue to grow. Our challenge as lawyers, thinkers and problem solvers—who are sometimes averse to change—is how to embrace progress without compromising our professional integrity. Utilizing technology does not replace one’s professional obligations to stay engaged with their work, participate in and monitor the e-discovery process, and confirm the veracity of the substance of the research and allegations they present to further their client’s interests in court. While employing technology comes with certain risks—and individuals may choose to engage with that risk at different levels—those that shun advancements all together will be at a severe disadvantage.

Melissa Hazell Davis serves as co-chair of Griesing Mazzeo Law’s confidential and sensitive investigations practice group. She is also a member of the firm’s commercial litigation and employment practice groups. She represents a wide range of clients, including both public and privately-held corporations, partnerships, limited liability companies and individuals in all types of business disputes. Contact her at [email protected].

Reprinted with permission from the May 30 2024  issue of  The Legal Intelligencer. © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.