By Edward McIntyre
Cartoon by George Brewster Jr.
Macbeth, Duncan and Sarah had just started lunch at the Greasy Spoon cafe when Clyde Zuckerman came over and pulled out a chair. “ You guys got a minute?”
Macbeth barely nodded. “I’m sure we have a minute, Clyde.”
“You guys heard of artificial intelligence? I mean, I just saw an article where it’s gonna take over the practice of law. Robots will be running everything. What are we gonna do?”
“Slow down, Clyde. Are you talking about the use of data analytics as a tool in the practice of law?”
“Yeah. That and everything else. Machines will be marching into our offices. What are we gonna do about it?” His palm slapped the table; silverware bounced.
Macbeth raised both hands. “Take a deep breath, Clyde. Let’s step back a bit.”
“OK, but —”
“Clyde!”
“OK.”
“You use email at this point, don’t you? To communicate with clients. Other lawyers?”
“Well, yeah, but —”
“You use a computer in your practice?”
“Yeah. Got to.”
“Have you ever handled a trusts and estates case?”
“Of course. But what’s that got to do —”
“I didn’t think you were a trust and estates lawyer, Clyde.”
“I’m not. I always turn to Brennan whenever I’ve got a T&E matter. Good man.”
“I agree, a fine lawyer. Rule 3-110, our competence rule, allows us to represent a client even if we don’t have sufficient learning and skill in the specific area, if we associate another lawyer who’s competent.”
“That’s why I always go to Brennan. Besides, I don’t want to be sued for malpractice.”
Sarah interjected. “Macbeth always says that the rules and risk mitigation go hand in hand.”
“Really? I didn’t know that.”
“Yes, many courts have held that the rules define a lawyer’s duty in a breach of duty claim and establish the standards of conduct for a professional negligence claim.”
“Wow.”
Macbeth spoke. “Let’s turn back to Clyde’s question. Clyde, you agree that competent representation means knowing the relevant law? Court rules, if it involves litigation?
“Of course. But what about artificial intelligence?”
“I’ll get there. Bear with me.”
“OK.”
“In 2010, the State Bar issued a formal opinion. It told us that the Rules of Professional Conduct — specifically competence and confidentiality rules — govern our use of technology.”
“OK —”
“Lawyers were obviously using technology — in one form or another — to serve clients. Technology made it easier to communicate. Less expensive to deliver services. Lawyers and clients both benefited.”
“OK. I get it.”
“Then in 2012, the American Bar Association amended its Model Rule on competence. It added the provision that to be competent, in addition to maintaining knowledge and skill — we all understand that — it also includes keeping abreast of the benefits and risks associated with relevant technology.”
“So what? California isn’t an ABA Model Rule state.”
“Quite so. But California courts look to the ABA Model Rules as ethical guidance when no California rule is on point and the ABA rule is consistent with California public policy.”
“So?”
“I think in light of the 2010 California opinion, and others — opinions on ESI and competence, for example — a court could look to the ABA competence rule amendment.”
“So what does this have to do with artificial intelligence?”
“Do we agree that email has made communication with clients easier? Less expensive? More efficient?”
“Yes —”
“And computers replacing IBM Selectric® typewriters and carbon paper was a big step forward?”
“Of course. What’s the point?”
“I assume we agree then. When a technology advance makes it easier, or less expensive, or more efficient to represent our clients, we have a duty to consider its use?”
“I guess so, but —”
“AI — the use of data analytics as another tool — with tools we now use, may be another technology advance. One that will make representation of our clients easier, less expensive, more efficient.”
“You mean an ethical duty?”
“Well, if our duty of competence includes keeping abreast of the benefits of technology, and if data analytics is a technology platform that delivers significant benefits to clients, can I seriously argue a lawyer doesn’t have a duty at least to consider its use?”
“Robot lawyers!” Zuckerman pushed his chair back and stomped off.
Edward McIntyre is an attorney at law and co-editor of San Diego Lawyer.
Editor Note: Court decisions to which Sarah and Macbeth referred include Day v. Rosenthal (1986) 170 Cal.App.3d 1125, 1147 (“The standards governing an attorney’s ethical duties are conclusively established by the Rules of Professional Conduct”); Mirabito v. Licardo (1992) 4 Cal.4th 41, 47 (“[A]n attorney’s duties to his client are conclusively established by the rules of professional conduct … The attorney’s violation of those rules establishes his negligence even in the absence of expert testimony”); City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 852 (ABA Model Rules provide authoritative guidance). The State Bar opinions include Formal Opn. No. 2010-179 and Formal Opn. 2015-193.
This article was originally published in the March/April 2018 issue of San Diego Lawyer.
No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.