Tech-savvy lawyering: Why attorneys must keep up with AI and emerging technologies

Artificial intelligence is booming. Its massive growth has caused people to take notice and attorneys are no exception. Although it remains to be seen exactly what AI means for, and how it will be implemented by the legal profession, increased use of AI raises a larger point--what should lawyers be doing to stay up to speed with technology? 

Some lawyers may feel more comfortable adapting to emerging technologies in day-to-day legal practice, but the profession as a whole can be slow to change course, adopt changes in technological processes and stay up to date on the latest tech trends.

However, the risks at stake for lawyers who do not take steps to keep abreast of developments in technology are potentially great. The American Bar Association, for example, modified its Model Rules on the duty of competence to accommodate emerging technology. Comment 8 of the Model Rule of Professional Conduct 1.1 provides: "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject." The majority of states have followed suit by adopting or considering similar language. These changes give credence to the notion that technological competency goes hand-in-hand with competent client representation.

Although technological advancements are often generally beneficial to the entire legal community, lawyers can face risks if they do not update their practices to stay informed about developments in technology. Lawyers who do not undertake the effort to become more proficient--both from a legal and technological standpoint--may find themselves unable to provide the same cutting-edge services offered by competing firms.

How technology affects ethical obligations in California

In keeping with the ABA and many other jurisdictions, California's 2023 adaptation of the Rules of Professional Conduct includes multiple references to technology. These include a modification to the duty of competence. Comment 1 of Rule 1.1 reads that "[t]he duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology."  Another example is Comment 2 of Rule 1.4, which permits attorneys to comply with their ethical obligations to communicate with clients via electronic means like email.

Marketing is another area in which California has modified its ethical rules to accommodate the benefits and risks associated with technological advances. The California Rules of Professional Conduct permit lawyers to advertise their practice via an electronic medium. Further, the rules prohibit attorneys from making false or misleading communications, including via electronic communications like websites. See Rule 7.2(a) and Comment 1 to Rule 7.1.

Types of technological advancements

Lawyers who work to develop their technological competence and enhance their services with cutting-edge technologies may see benefits to their practice. Further, attorneys who stay abreast of advancements likewise stay more aware of the risks that come with the use of said technology, including potential ethical implications.

Cloud computing and e-discovery have opened new doors for lawyers and clients alike. It is important that lawyers understand the requirements and risks of e-discovery (even when relying on vendors or others in their practice to help them). Large advancements in AI are seeing law firms adopt and implement applications like Harvey AI. AI and other automated programming can be helpful in streamlining tasks. But the use of generative AI also comes with a host of potential problems--including sanctions or legal malpractice claims if used improperly--that lawyers should not ignore.

Lawyers are permitted to rely on those they supervise to assist them with the use of technology. Indeed, it is fairly routine. Sometimes, it can be sufficient for a lawyer to meet their duty of competence to simply work with others who are more knowledgeable about these tech advances and can provide guidance. But lawyers are not supposed to completely abdicate their obligation to others. Indeed, the supervising lawyer may still face risk--from a bar grievance or from a court considering a motion to compel or for sanctions--if the lawyer's team fails to meet expectations. Lawyers may seek out continuing legal education courses to help them stay on top of changes in the law, technology, and how the two fields inevitably intersect in today's profession.

The ethical risks involved

The risks of not being competent in evolving technology can be severe.

The need for technological competence can be as simple as inadvertently sending an email to the wrong recipient to more advanced issues like ensuring that lawyers on a team are not using AI to generate fake legal cites in support of a motion.

Additional risks include that a technological blunder can result in an error in client representation, sanctions for misconduct, or the inadvertent disclosure of confidential information. Although lawyers are often at the forefront of many cutting-edge legal and commercial issues, it sometimes takes years for practitioners to catch up on technology advancements. This can create risks for lawyers, as reflected by Rule 5.1 and Rule 5.3 of the California Rules of Professional Conduct.

Lawyers also have obligations to safeguard client confidences transmitted or stored electronically; poorly created or enforced cyber policies can breach client confidential communications. If a client sues a lawyer for legal malpractice related to a cyberbreach, the lawyer may want to keep track of the safeguards the lawyer had in place, such as the use of passwords or two-step verification protocols, to establish the reasonableness of the lawyer's actions. On the other hand, if the lawyer did not really understand the technology and thus did not appreciate the risks and implement measures to avoid such risks, he or she is less likely to be successful.

Attorneys should make ongoing efforts to learn about and integrate the use of up-to-date technology into their practices--that way, practitioners are in a solid position to provide cutting-edge service to, and protect, their clients.