IAALS evaluates Utah's "regulatory sandbox"

In 2020, the Utah Supreme Court launched the nation’s first legal regulatory sandbox, arguably designed to open the door to new kinds of legal service providers and business structures and with the overall goal of expanding access to legal services while still protecting consumers.

Five years later, the Institute for the Advancement of the Americal Legal System (IAALS) is starting to publish its findings as an independent evaluator of the Sandbox.

The current version of their report is being published across a four-part report series.  The reports will be released on a rolling basis.  The first two are now available here, and it looks like the next two will also be posted to this same page, so bookmark it if this is something you are interested in.

A lawyer’s duties in response to a data breach

 Over at Ethical Grounds, the unofficial blog of Vermont's bar counsel, Michael Kennedy reminds us of a lawyer’s duties in response to a data breach.

Comment on recent ABA Opinion on generative AI

 Back in July I posted that the ABA had recently issued an ethics opinion on generative Ai and the practice of law. I am writing about it again today to let you know that just recently The Law for Lawyers Today published a comment on the opinion here.

Illinois Commission on Professionalism Releases Study on Bullying in the Legal Profession

The Illinois Supreme Court's Commission on Professionalism has released a study on bullying within the profession.  Not surprisingly (since the study is about bullying), the study concludes that bullying disproportionately affects female attorneys, attorneys with disabilities, attorneys of color, younger attorneys, and LGBTQ+ attorneys.

Illinois Lawyer Now has a short summary of the study here, and you can read the full study here.

Breaking Down the ABA’s Guidance on Using Generative AI in Legal Practice

A recent article breaking Down the ABA’s guidance on using generative AI in legal practice is available here.

ABA issues Formal Opinion on Generative Artificial Intelligence Tools -- UPDATED

July 29, 2024

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new formal ethics opinion (ABA Formal Ethics Opinion 512) on ethical duties related to the use of generative artificial intelligence tools.  The summary states: 

To ensure clients are protected, lawyers using generative artificial intelligence tools must fully consider their applicable ethical obligations, including their duties to provide competent legal representation, to protect client information, to communicate with clients, to supervise their employees and agents, to advance only meritorious claims and contentions, to ensure candor toward the tribunal, and to charge reasonable fees.

You can access the full opinion here. 

UPDATE 8/5/24:  Here are a couple of comments on the new Ethics Opinion:

LawSites

Ethical Grounds

Generative AI and the practice of law

As reported by Ethical Grounds, last month, the D.C. Bar issued Ethics Opinion 388: Attorneys’ Use of Generative Artificial Intelligence in Client Matters, which discusses many different issues and the Rules of Professional Conduct most likely implicated by a legal professional’s use of generative AI (GAI).  You can read the opinion here.

Based on this opinion, Michael Kennedy (of Ethical Grounds), has posted two new comments on issues related to generative AI and the practice of law.  In the first one, available here, he discusses why it is not necessary to amend or change current rules of professional conduct in response to the effects of generative AI in the practice of law.  In the second one, available here, he begins to address issues related to the professional duties most likely to be implicated by a legal professional’s use of GAI by discussing the duty of confidentiality.  I expect he will address other duties in future posts, so stay tuned.  

ABA Issues Formal Opinion cautioning lawyers to be careful not to disclose confidential information when talking about the representation of clients

As all of you know, the ABA's Standing Committee on Ethics and Professional Responsibility frequently issues Formal Opinions to help answer questions and clarify aspects related to the interpretation and application of the ABA Model Rules.  Last week, the Committee issued a new opinion on confidentiality.  Its summary reads as follows:

Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved. A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation. 

Whether the conclusion is limited to listsevs is actually not that relevant since the same can be said of any instance in which a lawyer discusses a client's representation in a public setting (when addressing a group discussion, as an example in a meeting, when teaching a class, when participating in a CLE program, etc, etc.)  But the focus of the opinion seems to be on lawyers who turn to listservs to seek help on a matter they are working on for a client, a practice I can safely say is very common in at least one of the listservs I follow.

Lawyers like talking about their work, their clients and often share war stories or use their experiences as examples to illustrate issues, or to ask questions.  Often, they also ask others for help in finding support for an argument or to find sources of information on how to handle a particular issue.  The problem is that, in doing so, it is possible to disclose confidential information, which, of course, could be a problem.

Yet, although the opinion follows the logic of the broad approach to confidentiality reflected in the rules, it was quickly criticized by some, ironically, in a listserv I follow.  Likewise, Bob Ambrogi, who writes about legal technology in the website LawSites, wrote a good article in which concludes that the opinion "takes an overly heavy-handed approach to an issue it should have addressed, if at all, maybe 20 years ago. In other words it is too much, too late."  You should read his opinion here.

Micheal Kennedy also has a comment on the opinion here.

Free Legal Research Startup Now Offers AI Generated Summaries of All State Supreme and Appellate Opinions

 LawSites is reporting (here) that a new website that provides access to legal research called descrybe.ai is focused on using artificial intelligence to provide free and easy access to court opinions and that it recently began to offer access to AI-generated summaries of all available state supreme and appellate court opinions from throughout the United States. 

Will AI make the practice of law more accessible? Not everyone agrees

Saying that AI will affect the practice of law is old news.  It already has.  The question now is whether it will affect the practice of law for the better.  And the answer to that will depend on many factors including what you consider to be "better."  With that in mind, take a look at this comment titled "AI can make law better and more accessible; it won't."  

How to reply to negative online reviews

 The issue of how to reply to negative online reviews is not new.  If you go to the "internet" section of this blog and scroll down you will find a number of stories on it.  The most recent one is from October of last year on an Arizona Ethics Opinion that concludes lawyers can disclose confidential information when replying to negative online reviews.

Today I am writing to link to a recent post over at LexBlog that again provides basic tips on the subject.  Here it is.

Another year in review program

 About two week ago I posted a link to a year in review program that discussed the top ten stories of 2023 in legal ethics.  See here.

Now, here is another one. This is a link to the video of Legaltech Week’s year-end show, in which a panel of journalists and bloggers picked the year’s top stories in legal tech and innovation.  You can also find it on YouTube, here.

LegalTech Week, by the way is a weekly podcast on topics related to law practice and technology.

A lawyer’s duties when using artificial intelligence

We start the new year with a story about what is likely to be one of the most debated topics of 2024: the use of artificial intelligence in the practice of law.  Over at Ethical Grounds, Michael Kennedy has published a very short post on "a lawyer's duties when using artificial intelligence."  You can read the full story here.

Arizona Ethics Opinion concludes lawyers can disclose confidential information when replying to negative online reviews

Long time readers of this blog might remember a few posts on whether an attorney can reply to negative online reviews.  All sources I have seen agree that lawyers can respond to negative reviews but that they can not disclose confidential information about a client in the process.  (Go here for a recent post which includes links to the older ones.  Here is link to an ABA Opinion.)

I am writing about this today again because I just found out that at the end of last year, the Supreme Court of Arizona Attorney Ethics Advisory Committee issued an ethics opinion that contradicts what all those sources have opined on the issue.

This new opinion concludes that 

In the context of an unfavorable online comment or review by a former client, informed consent is unlikely, meaning that disclosure of confidential information will be improper unless permitted by the only exception potentially applicable to this scenario, which is found under Rule 1.6(d)(4). Under Rule 1.6(d)(4), a lawyer may reveal confidential information relating to the representation of a client to the extent the lawyer reasonably believes necessary "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." Comment 12 to Rule 1.6 further provides that, where a legal claim or disciplinary charge alleges complicity of the lawyer in a former client's conduct or other misconduct involving representation of the former client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. Comment 12 also states that the lawyer's right to respond arises when an assertion of such complicity has been made; section (d)(4) does not require the lawyer to wait for an action that charges such complicity to commence. Rather, the defense may be established by responding directly to a third party who has made such an assertion.

The question thus becomes whether negative online comments establish a "controversy," and, if so, whether disclosure of confidential information can ever be considered reasonably necessary to establish a defense. Negative online comments do establish a controversy between a lawyer and client the informality of an online critique is not relevant. Furthermore, disclosure of confidential information may be considered reasonably necessary to establish a defense. A client may not use confidentiality as both a sword and a shield in a formal legal or disciplinary proceeding. Similarly, the client should not be able to make public accusation of serious misconduct against their former lawyer and then invoke the lawyer's duty of confidentiality to prevent the lawyer from making an effective response or to punish the lawyer for having done so. An individual who elects to try their former lawyer in the court of public opinion rather than before a tribunal and makes serious accusations that put confidential information at issue assumes the risk that such information will be disclosed in the lawyer's response. Thus, untrue accusations of misconduct should be countered.

Go here and scroll down to read Supreme Court of Arizona Attorney Ethics Advisory Committee Ethics Opinion File No. EO-19-0010 (December, 2022).

Thank you to Victor Salas for sending me a copy of the opinion!

Is it ethical to advise clients to delete content from social media?

 It depends.  The San Diego County Bar Association explains here.

Do Attorneys Need to Implement Email Encryption?

Most states have adopted the view that the duty of competence includes a duty to keep up with modern technology.  Also, most states have adopted the view that the duty of confidentiality includes a duty to take reasonable measures to protect confidential information from unauthorized or negligent disclosure (which can happen if a lawyer is not familiar with certain aspects of modern technology).  

So, given those two facts, do lawyers need to implement e-mail encryption?  I have not seen any specific decision or opinion that answers that question with an unequivocal "yes" but I have seen articles suggesting that it would be the logical answer.

And here is the latest, published in Law Technology Today.  

First "AI-Robot Lawyer" has a rough week, ending in quitting the profession apparently - UPDATED

January 29, 2023

A few weeks ago, the head of a company called DoNotPay offered a million dollars to anyone who’d let his a chatbot argue a case at the Supreme Court. I do not know if anyone took him up on the offer but it was later reported that two lawyers agreed to let the bot represent two defendants fight speeding tickets in traffic court.  

The story picked up a lot of press (including the Smithsonian magazine), but some time later, the plan was scrapped and DoNotPay announced that its chatbot is quitting the legal services business to concentrate on consumer protection products instead.  

What happened?  It is not entirely clear, but if you are interested in the possibility of A-I in the legal field you should read the account of the Kathryn Tewson's account of her experience with DoNotPay which was published in two parts in Tech Dirt here and here.  The story ends with DoNotPay blocking Tewson about which she writes: ". . .  DoNotPay.com would rather block me, ban my account, retcon his terms of service to disallow any test usage at all, and claim to pull out of the “Legal Services” industry that his site is PLASTERED with branding for, rather than show me the two documents I generated and tried to buy."  

Not a good look...  Above the Law also has two comments on the story here and here.  The second one of these stories deals with the bigger questions raised by this whole debacle.  Could a robot help provide legal representation to clients in certain situations?  Would that be a bad thing?

In general, at this point the answers are probably no and yes.  But for traffic court... the answers may be different.  The fact that the company was apparently trying to do something surreptitiously in court eliminated the possibility and the fact it acted so strangely when challenged by someone trying to test its product did not help its image among lawyers, but does that mean that AI legal aides don't have a place in the market of legal services?  

If you are interested in this topic, you should read the article by Joe Patrice in Above the Law in which he argues that AI-driven legal aides are going to keep getting more sophisticated and that much of the arguments against allowing AI services "read a lot as though lawyers only want technology that keeps them properly installed as the sole gatekeepers of justice. . . . . In an ideal world, everyone who finds themselves before the law would have access to an attorney. But since we seem committed to a legal services model that makes that a fantasy, we need to have serious discussions about what tools we let people use to pursue their own rights."

UPDATE 2/4/23

Here is a follow up story on DoNotPay's less than stellar businsess practices.

UPDATE 10-21-23

I have posted multiple updates to the story here:   January 29, February 14, February 16, March 4, March 10, March 17 and October 21.

Be careful when replying to online reviews; but also when reading about cases on replies to online reviews

 I have posted a number of times on the issues that arise when lawyers reply to negative online reviews.  (Here are links to the more recent comments on opinions from the ABA (also here and here) and from Florida, and North Carolina.)

I am writing about this again today because I saw a headline in the Legal Profession blog that read "Reciprocal Censure For Response To Negative Online Review" and thought that it would be a novel case.  But it wasn't and the problem is the headline is worded wrong.

As written, it suggests that the lawyer was disciplined for replying to the review; or, in other words, that it would be misconduct to reply to an online review.  That is not the case.  The problem is not that the lawyer replied but HOW the lawyer replied.  The story is not that the lawyer replied, but that the lawyer replied improperly (in this particular case, by disclosing confidential information).

So the story is not that the lawyer was disciplined for replying to the review, but that the lawyer was disciplined for violating the duty of confidentiality.  

And the bottom line is that unless a particular jurisdiction has decided otherwise, lawyers are allowed to reply to negative reviews, but lawyers have to be careful not to violate other rules when they do so.

Short article on new Ohio rules regarding Rule 5.5 and practice of law remotely

Back in August I reported that Ohio amended its ethics rules to make clear what is required of lawyers who are physically located but not licensed there.  The ABA recently published a short article commenting on the new rules.  You can access it here.

Data regarding regulatory changes in Utah shows promise according to new report

As I am sure you know, last year Utah and Arizona adopted significant changes to their approach to the regulation of the practice of law.  Chief among these changes was the elimination of the ban on partnerships of lawyers and non-lawyers for the provision of legal services.  The debate over measures like this one and over allowing "alternative business structures" for providing legal services has been going on for years, and much of the debate was based on data obtained by studying similar programs in the UK and Australia.

Now, about a year into the new era of regulation in Utah and Arizona, it is time to start looking at the date from the US.  The Institute for the Advancement of the American Legal System (IAALS) is leading the way and in its initial report regarding Utah it says that numerous businesses and collaborations are up and running, providing a wide range of much-needed legal services.  Of the 30 entities that have been approved by the Utah Supreme Court, 13 are considered as moderate risk, and one as high risk (considering both the likelihood of harm—as well as the degree of harm—that they might pose to consumers), but the IAALS considers the overall data so far to be very positive.

According to the recent report, "Utah’s sandbox has opened up a world of possibilities when it comes to how to practice law, and demonstrates how innovation, technology, and professionals who aren’t lawyers can work alongside attorneys and ensure consumers have real access to the entire spectrum of legal needs" and the report concludes that 

We still have a long way to go and a lot of data to collect, but what we’ve seen so far does suggest that re-regulation has the potential to meaningfully increase access to justice and, importantly, the data shows that these kinds of innovations can be done safely. In just nine months, more than 2,500 people have received help with housing, immigration, healthcare, discrimination, employment, and a gamut of other issues. Lawyers are partnering up with other professionals to create new types of businesses, and technology is enabling them to do their jobs more efficiently. Instances of harm are rare—and, when they do occur, are being monitored and utilized by the Office of Legal Services Innovation to continually improve. As more states look to re-regulation as a means to increase access to legal services, the data from Utah’s sandbox—and the real people’s lives it is impacting—should be a strong push in that direction.

You can read more about the IAALS evaluation in their website.