Written by: Microsoft Copilot, Inspirational Prompter – Tom Groth

Are You Aiding and Abetting the Unauthorized Practice of Law by Using AI?

How to avoid legal risks and ethical dilemmas when delegating tasks to AI and LLMs.

Introduction

Artificial intelligence (AI) is transforming the legal profession in many ways, from automating document review to predicting case outcomes. Many attorneys are embracing AI as a tool to enhance their efficiency, accuracy, and competitiveness. However, using AI also comes with some potential legal risks and ethical dilemmas, especially when it comes to the unauthorized practice of law (UPL).

What is UPL and why does it matter?

UPL is the act of engaging in the practice of law without a license or authorization from the relevant jurisdiction. UPL can be committed by non-lawyers, such as paralegals, legal assistants, or online platforms, or by lawyers who practice outside their licensed jurisdiction or area of expertise. UPL is prohibited by statutes, rules, and court decisions in most jurisdictions, and can result in civil or criminal penalties, disciplinary actions, or malpractice claims.

UPL matters because it protects the public from incompetent or fraudulent legal services, and preserves the integrity and quality of the legal profession. UPL also matters because it defines the scope and boundaries of what lawyers can and cannot do, and what they can and cannot delegate to others, including AI and LLMs (Master of Laws).

How can using AI and LLMs lead to UPL?

Using AI and LLMs can lead to UPL in several ways, depending on the nature and extent of the tasks delegated, the level of supervision and review, and the jurisdictional rules and standards. Some examples of how using AI and LLMs can lead to UPL are:

• Delegating tasks that require legal judgment, analysis, or advice to AI or LLMs, such as drafting contracts, pleadings, or motions, or conducting legal research or analysis.
• Allowing AI or LLMs to communicate with clients, courts, or third parties on legal matters, such as providing legal opinions, recommendations, or guidance.
• Using AI or LLMs to perform tasks that are beyond their competence, reliability, or accuracy, such as using unverified or outdated data, algorithms, or sources, or failing to account for jurisdictional variations or nuances.
• Failing to adequately supervise, review, or verify the work of AI or LLMs, such as relying on AI-generated outputs without checking for errors, omissions, or inconsistencies, or accepting LLMs’ work without ensuring that they comply with the applicable rules and standards.
• Failing to disclose, inform, or obtain consent from clients, courts, or third parties about the use of AI or LLMs, such as hiding or misrepresenting the role or involvement of AI or LLMs, or failing to address the potential risks, benefits, or limitations of using AI or LLMs.

How to avoid UPL when using AI and LLMs?

To avoid UPL when using AI and LLMs, attorneys should follow some best practices, such as:

• Understanding the scope and limitations of their license and jurisdiction, and ensuring that they do not practice outside their authorized area or expertise.
• Understanding the capabilities and limitations of AI and LLMs, and ensuring that they use them only for appropriate and permissible tasks.
• Exercising due diligence and care when selecting, using, and evaluating AI and LLMs, and ensuring that they meet the relevant quality, reliability, and accuracy standards.
• Maintaining adequate supervision, review, and verification of the work of AI and LLMs, and ensuring that they correct any errors, omissions, or inconsistencies.
• Maintaining adequate communication, disclosure, and consent with clients, courts, and third parties about the use of AI and LLMs, and ensuring that they address any concerns, questions, or objections.
• Maintaining adequate records, documentation, and attribution of the work of AI and LLMs, and ensuring that they comply with the applicable confidentiality, privacy, and security rules.

Conclusion

Using AI and LLMs can be a valuable and beneficial way to enhance the legal practice, but it also comes with some potential legal risks and ethical dilemmas, especially when it comes to UPL. Attorneys who use AI and LLMs should be aware of the UPL rules and standards in their jurisdiction, and follow the best practices to avoid UPL and protect their clients, reputation, and profession.

PLEASE NOTE: Microsoft Co-Pilot