IEEE Technology and Society Magazine - December 2021 - 40

Soft Law Governance of Artificial Intelligence
and enforced within existing legal-services regulatory
frameworks. Over time, this soft law could be
expressly incorporated into hard law regulations for
legal-services delivery.
In the United States, the American Bar Association
(ABA) publishes the Model Rules of Professional
Conduct. The ABA, however, does not have
jurisdiction to regulate lawyers directly. States regulate
legal services and lawyers, including by adopting
the Model Rules proposed by the ABA, usually
with few substantive modifications.
In this section, I review several ABA Model Rules
that could be effective mechanisms for the enforcement
of soft law standards for evaluating the effectiveness
of AI for legal services. While each rule
creates obligations for lawyers and other legal-services
professionals, most either give great deference
to lawyers or rely on vague standards. Soft law could
fill the gaps by helping establish concrete actions
that would be sufficient to comply with existing
obligations.
Rule 1.1: Competence and understanding the
risks and benefits of technology
Under Model Rule 1.1, lawyers must " provide
competent representation to a client " [18]. This
" requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation "
[18]. In 2012, the ABA amended Comment
8 to Rule 1.1 to make clear that lawyers must
be competent regarding technology: " 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 " [18]. As of June 2021, 39 jurisdictions
had adopted this amendment [19].
Unfortunately, little concrete guidance has
emerged from regulators or courts about what is
required to be considered competent regarding AI.
A commentator has said, " [i]f a lawyer uses a tool
that suggests answers to legal questions, he must
understand the capabilities and limitations of the
tool, and the risks and benefits of those answers "
[20]. ABA Resolution 112, which speaks to lawyers'
use of AI, states: " Under Rule 1.1, lawyers also must
have a basic understanding of how AI tools operate.
While lawyers cannot be expected to know
all the technical intricacies of AI systems, they are
required to understand how AI technology produces
results " [21].
40
Courts have begun to define competence when
lawyers use AI for electronic document discovery in
litigation [22]. In a 2009 court ruling, Magistrate Judge
Andrew Peck excoriated lawyers for " designing keyword
searches in the dark, by the seat of the pants,
without adequate (indeed, here, apparently without
any) discussion with those who wrote the emails "
[23]. Judge Peck wrote that lawyers using keywords
to retrieve electronically stored information at a minimum
must, among other things, " quality control test "
their " proposed methodology " to " assure accuracy in
retrieval and elimination of 'false positives' " [23]. In
other words, lawyers must evaluate the effectiveness
of the technology tools they use.
AI tools " require more than just knowing how to
mechanically 'press buttons' to use the software "
[24]. " Knowing when, how, if, and what type of tool
to deploy, or what type of tools to chain together,
[has] become part of the lawyer's duty and the successful
lawyer's toolbox " [24]. The legal profession
is transforming " into one where attorneys will need
both technical and legal skills to competently represent
clients " [24]. Lawyers " can no longer uncritically
rely on outside advisors or blindly accept 'black
box' results. " Lawyers may rely on technical experts,
but they cannot delegate their duties to these technical
experts [24].
Rules 5.1 and 5.3: Duty to supervise (other
lawyers and other professionals)
Partners and other supervising lawyers must
undertake reasonable efforts to ensure that their law
firm has effective measures in place to give reasonable
assurance that all lawyers conform to the rules of
professional conduct. Partners and other supervising
lawyers have similar obligations when working with
other professionals they employ, retain, or associate
with while providing services. The latter obligations
include assistance from AI to provide services [27].
Commentators have said that lawyers must
understand AI " well enough to ensure compliance
with the lawyer's ethical duties " [27]. " This includes
making sure that the work product produced by AI is
accurate and complete and does not create a risk of
disclosing client confidential information " [27].
Rule 1.4: Communicating with clients about
means of accomplishing objectives
A lawyer must " reasonably consult with the client
about the means by which the client's objectives are
IEEE Technology and Society Magazine
IEEE Technology and Society Magazine - December 2021

Table of Contents for the Digital Edition of IEEE Technology and Society Magazine - December 2021
