How Should Legal Ethics Rules Apply When Artificial Intelligence Assists Pro Se Litigants?

• Author: Brooke K. Brimo
• Position: J.D., Georgetown University Law Center (expected May 2023); B.A., McGill University (2020)
• Pages: 549-577

How Should Legal Ethics Rules Apply When

Artificial Intelligence Assists Pro Se Litigants?

BROOKE K. BRIMO*

INTRODUCTION

Each year, one out of every six Americans represents himself or herself in

court without the assistance of a lawyer.

1

Nancy Kinnally & Jessica Brown, Everyone Counts: Taking a Snapshot of Self-Represented Litigants in

Miami-Dade, DIALOGUE (Nov. 17, 2017), https://www.americanbar.org/groups/legal_services/publications/

dialogue/volume/20/fall-2017/pro-bono-everyone-counts/ [https://perma.cc/4QPF-YJFL].

Individuals represent themselves, or liti-

gate pro se,

2

for a variety of reasons, including their inability to afford a lawyer,

their mistrust or dislike of lawyers, or their desire to advocate for themselves.

3

See, e.g., Debra Slone, 10 Reasons to Represent Yourself in Court, COURTROOM5 (Sept. 7, 2021), https://

courtroom5.com/blog_content/10-reasons-to-represent-yourself-in-court/ [https://perma.cc/YHG6-VE9P].

The justice gap—the large difference between the number of people who want or

need legal assistance and the number who receive it—is widely perceived as a

failure of the United States legal system to provide equal justice under the law.

4

See, e.g., AM. ACAD. OF ARTS & SCI., MEASURING CIVIL JUSTICE FOR ALL: WHAT DO WE KNOW? WHAT

DO WE NEED TO KNOW? HOW CAN WE KNOW IT? 1 (2021), https://www.amacad.org/sites/default/files/

publication/downloads/2021-Measuring-Civil-Justice-for-All.pdf [https://perma.cc/H6AH-PVDP].

Involuntary self-representation is especially prevalent in civil cases: no right to

counsel exists for civil litigants, and, because most low-to-moderate-income fam-

ilies and individuals cannot afford legal services,

5

AM. BAR ASS’N SECTION OF LITIG., MODEST MEANS TASK FORCE, HANDBOOK ON LIMITED SCOPE LEGAL

ASSISTANCE 3 (2003) [hereinafter ABA HANDBOOK], https://www.americanbar.org/content/dam/aba/

administrative/litigation/leadership-portal/handbook-on-limited-scope-legal-assistance.pdf [https://perma.

cc/ZB9G-GBYF].

approximately three out of ev-

ery five people in civil cases go to court with no lawyer.

6

Self-Represented Litigation Network, SELF-REPRESENTED LITIG. NETWORK, https://www.srln.org/

[https://perma.cc/FRA7-CN4Z] (last visited Mar. 11, 2022).

Self-representation

occurs in criminal cases to a lesser extent. The Sixth Amendment, applied to the

states through the Fourteenth Amendment, provides criminal defendants the right

to effective assistance of counsel both at trial

7

and on their first appeal as of right.

8

But there is no constitutional right to appeal,

9

and criminal defendants also have

* J.D., Georgetown University Law Center (expected May 2023); B.A., McGill University (2020). © 2022,

Brooke K. Brimo. I would like to thank Professor Jessica Wherry and Professor Ed Walters for their guidance.

1.

2. This is in contrast to represented litigants, who are represented by a lawyer in court. See Pro Se n.,

BLACK’S LAW DICTIONARY (11th ed. 2019).

3.

4.

5.

6.

7. U.S. CONST. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“The right of one charged

with crime to counsel [is] fundamental and essential to fair trials.”).

8. Evitts v. Lucey, 469 U.S. 387, 402 (1985).

9. District of Columbia v. Clawans, 300 U.S. 617, 627 (“Due process does not comprehend the right of

appeal.” (citing McKane v. Durston, 153 U.S. 684, 687 (1894))).

549

an implicit constitutional right to represent themselves, so long as their choice is

“‘free and intelligent.’”

10

In the early 2000s, the American Bar Association (“ABA”) began to recom-

mend increased use of limited-scope representation (also known as unbundled

legal services and discrete task representation) to mitigate the justice gap, guided

by the idea that “in the great majority of situations some legal help is better than

none.”

11

Depending on the state, a lawyer and client might be allowed to agree

that the lawyer will represent the client for only one or a few phases of the case

and then withdraw,

12

that the lawyer will represent the client in a specified forum

only,

13

or that the lawyer will help the client proceed pro se but will not represent

the client in court.

14

In the future, limited-scope representation might also be provided by machines.

There is enormous potential to further narrow the justice gap using technology,

15

particularly software

16

that uses artificial intelligence (“AI”) to provide legal

services in a “one-to-many” format.

17

A few software publishers have made self-

help legal information programs available to the public.

18

In the future, legal AI

19

could be developed to assist pro se litigants in drafting pleadings, motions, briefs,

and other documents; to advise them on their litigation strategy and likelihood of

success; or to perform other litigation-related tasks.

10. Faretta v. California, 422 U.S. 806, 814–15 (1975) (quoting Adams v. United States ex rel. McCann,

317 U.S. 269, 275 (1942)).

11. ABA HANDBOOK, supra note 5, at 12. Limited-scope representation is permitted under the Model Rules:

“[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and

the client gives informed consent.” MODEL RULES OF PROF’L CONDUCT R. 1.2(c) (2018) [hereinafter MODEL

RULES]. A 2002 amendment to Comment 6 clarified that financial considerations are a legitimate basis for a de-

cision to pursue limited-scope representation: lawyers can “exclude actions that the client thinks are too

costly.” MODEL RULES R. 1.2 cmt. 6; LISA G. LERMAN, PHILIP G. SCHRAG & ROBERT RUBINSON, ETHICAL

PROBLEMS IN THE PRACTICE OF LAW 199 (5th ed. 2020).

12. LERMAN, SCHRAG & RUBINSON, supra note 11, at 198.

13. For instance, a lawyer and client might decide to limit the representation to the portion of the case that

takes place either in court or in arbitration. Eric W. Macaux, Limiting Representation in the Age of Private

Law: Exploring the Ethics of Limited-Forum Retainer Agreements, 19 GEO. J. LEGAL ETHICS 795, 800 (2006).

14. Ala. State Bar Disciplinary Comm., Op. 2010-01 (2010) (The Unbundling of Legal Services and

“Ghostwriting”); LERMAN, SCHRAG & RUBINSON, supra note 11, at 199.

15. Ed Walters, The Model Rules of Autonomous Conduct: Ethical Responsibilities of Lawyers and

Artificial Intelligence, 35 GA. STATE U. L. REV. 1073, 1090 (2019).

16. The term “software” refers to computer programs. Computer programs can be classified as either appli-

cation or operating system programs. Application programs or “apps”—the type of software this Note dis-

cusses—perform specific tasks for the user, such as web browsing or word processing. Meanwhile, operating

system programs manage the computer’s internal functions and facilitate users’ use of apps. Apple Comput.,

Inc. v. Franklin Comput. Corp., 714 F.2d 1240, 1243 (3d Cir. 1983).

17. Legal services are typically provided in “one-to-one” format, where one or a few lawyers work on each

client’s case. Commercial software programs typically function in “one-to-many” format, where many people

can use the software at the same time. If legal services were provided via software, then many more clients

could be served at the same time. See Walters, supra note 15, at 1091.

18. See infra Part I.A.

19. This Note uses the term “legal AI” to denote software that uses AI to perform tasks traditionally per-

formed by lawyers.

550 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:549