The legal profession is no stranger to embracing technological advancements.  More than 40 years ago, law firms and courts were early adopters of rudimentary artificial intelligence (AI) as applied to research (Lexis and Westlaw). The next leap came when fax machines outpaced the postal service, and then email changed the playing field (as well as the pace of play) entirely.  Technological innovation continues and the profession has now come to embrace a far more advanced version of AI than anything it has seen or even imagined.

It cannot be overstated that artificial intelligence is playing an increasingly vital role in transforming the practice of law. One of the most significant AI innovations in recent months has been the launch of ChatGPT. Developed by OpenAI — a research and development company focused on creating “highly autonomous systems that outperform humans at most economically valuable work”^[i] — ChatGPT’s emergence is potentially a watershed moment for AI and related legal issues.

Launched in November 2022, this AI chatbot generates intuitive and learned responses to written questions, providing clear and detailed answers in plain English. It processes questions by searching information in a database and reconciling online results, producing coherent mini-essays. ChatGPT’s versatility enables it to engage in various tasks, including holding conversations, drafting essays, taking and passing exams (ChatGPT beat 90 percent of humans who took the bar exam)^[ii], and implementing software programs.

Until now, AI solutions have predominantly been commercial tools requiring enterprise licenses only accessible to those with significant capital and after a lengthy vetting process within organizations. But now, individuals can use the AI service in the same way they run a web search, or ask Siri a question. In the past few weeks, Microsoft has upgraded its search engine Bing with its own version of ChatGPT, and Google continues to tout its ChatGPT rival, Bard.

Increasing Efficiency in a Number of Ways

As a standalone tool, ChatGPT already offers value to lawyers. When integrated into legal tech products, its potential increases even further. As new and improved versions are released, it will undoubtedly change how legal work is conducted in many ways. In the months since its launch, many law firms have started using ChatGPT or the AI model behind it to assist with drafting, research, and other tasks. While it is unlikely that these AI tools will completely replace lawyers any time soon, they can be utilized as a competitive advantage to augment work, increase efficiency, and reduce the time spent on repetitive tasks, such as:

1. Document Drafting: ChatGPT’s ability to understand and generate human-like text makes it an invaluable resource in preparing legal documents. It can create workable first drafts of pleadings, demand letters, discovery demands, nondisclosure, and employment agreements. The full scope of the legal documents it can prepare remains to be seen, but it likely impacts most practice areas.
2. Legal Research: ChatGPT has made researching case law, statutes, and regulations faster and more efficient. This AI-driven tool can quickly process vast amounts of legal data, producing relevant results faster than it would take a human. Like Westlaw or Lexis, ChatGPT parses through large volumes of legal documents and databases, providing relevant case law summaries, statutes, and other materials in a fraction of the time it would take a human to do the same.
3. Legal Advice and Analysis: While ChatGPT cannot yet replace the nuanced judgment of experienced attorneys, it can provide preliminary analysis and recommendations on various legal issues, aiding in the decision-making process. Most importantly, it can potentially make legal services available to people of limited means, offering sensible advice at the stroke of a keyboard.
4. Contract Review and Drafting: ChatGPT has proven to be a valuable tool in assisting with contract review and drafting. By analyzing the language of existing contracts, the AI model can identify potential risks and issues, inconsistencies, and redundancies, and also suggest improvements to the document’s language.
5. Litigation Support: ChatGPT can analyze large volumes of data from multiple sources, such as emails, documents, and social media, identifying relevant information and patterns that can be utilized in litigation strategy. It seems even ChatGPT itself is conscious of its utility. When asked to identify 20 jobs that it could replace, the fourth job ChatGPT listed was paralegal, noting that it could replicate the “required human traits of research and organization.” ^[iii]

Potential Advantages Outweigh Growing Pains

Because ChatGPT is still in its nascent phase and susceptible to mistakes, employing it in legal practices without proper precautions is not without professional risk. To effectively utilize ChatGPT, attorneys must comprehensively understand the matter and meticulously examine, modify, and enhance any findings or preliminary language provided by the AI. User trial and error shows that ChatGPT will occasionally get it wrong – sometimes citing incorrect or inapplicable law. And although ChatGPT’s output can serve as an excellent foundation, it frequently necessitates considerable refinement.

Still, while ChatGPT-generated outcomes may contain inaccuracies, lawyers should remain receptive to its potential advantages. It offers a tremendous time-saving resource and an excellent starting point for researching any subject. Undoubtedly the desire for cost-effective solutions and increased efficiency fuels the demand for AI-based tools to alleviate tedious tasks and conserve valuable time for legal professionals. As the legal field has already witnessed considerable progress in efficiency through research platforms, digital correspondence, and technological innovations, adopting AI tools such as ChatGPT is the next step in this march forward.

ABA’s Role

Currently, most law firms lack internal ChatGPT policies, as existing ABA guidelines on tech competency provide sufficient guidance for using AI tools.

However, while the ABA may not yet need to create ChatGPT-specific guidelines, it nevertheless already offers relevant best practices for attorneys. Recently, the ABA House of Delegates adopted Resolution 604 at the 2023 ABA Midyear Meeting, addressing how attorneys, regulators, and other stakeholders should assess issues of accountability, transparency, and traceability in artificial intelligence. Resolution 604^[iv] calls on organizations that design, develop, deploy, and use AI to follow these guidelines:

• Developers of AI should ensure their products, services, systems and capabilities are subject to human authority, oversight and control.
• Organizations should be accountable for consequences related to their use of AI, including any legally cognizable injury or harm caused by their actions, unless they have taken reasonable steps to prevent harm or injury.
• Developers should ensure the transparency and traceability of their AI and protect related intellectual property by documenting key decisions made regarding the design and risk of data sets, procedures and outcomes underlying their AI.

The focus on “traceability” and calls for human oversight, accountability, and transparency in AI development seem to directly touch the use of ChatGPT by attorneys. Thus, firms should be aware that they are accountable for the consequences of using AI, including any legally cognizable injury or harm caused by their actions unless they have taken reasonable steps to prevent harm or damage.

The ABA Model Rules of Professional Conduct, particularly Rules 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), and 1.6 (Confidentiality), also offer guidance for attorneys using ChatGPT. Ethical obligations must take precedence over convenience. Security, client privacy, and privilege issues also must be considered. To safeguard client information, attorneys should familiarize themselves with ChatGPT’s Privacy Policy and Terms of Use.

 AI Improves the Delivery of Legal Services

While acknowledging ChatGPT’s limitations, it can be utilized in legal practice to enhance an attorney’s work without replacing human expertise. Artificial Intelligence undoubtedly has started to impact the legal profession, and can improve the delivery of legal services to benefit clients. By viewing ChatGPT as an asset now rather than a threat to job security down the road, attorneys can gain a considerable competitive edge in the industry.  Thus, Lawyers should integrate tools like ChatGPT into their practice to enhance performance and stay abreast of current trends in legal technology. Eventually, sophisticated clients will demand that such AI be implemented to ensure the best technology is utilized to ensure favorable outcomes.

^[i] https://d3.harvard.edu/platform-digit/submission/openai-developing-next-gen-ai-tools-for-the-good-of-humanity/#:~:text=OpenAI%20attempts%20to%20build%20safe,to%20build%20next%2Dgen%20applications.

^[ii] https://www.forbes.com/sites/johnkoetsier/2023/03/14/gpt-4-beats-90-of-lawyers-trying-to-pass-the-bar/?sh=36e2df5e3027

^[iii] https://twitter.com/rowancheung/status/1636066246859931648?s=42

^[iv] https://www.abajournal.com/web/article/aba-house-adopts-3-guidelines-to-improve-use-of-artificial-intelligence