Machine Lawyering and Artificial Attorneys: Conflicts in Legal Ethics with Complex Computer Algorithms

• Author: Augustus Calabresi
• Position: J.D., Georgetown University Law Center (expected 2022); A.B., Washington University in St. Louis (2018)
• Pages: 789-806

Machine Lawyering and Artificial Attorneys:

Conflicts in Legal Ethics with Complex

Computer Algorithms

AUGUSTUS CALABRESI*

INTRODUCTION

The role of the lawyer, like that of other professionals, has developed

immensely over time. Technological innovation in law may not have had the

same impact that it has had in other fields. For example, computer science was

effectively a discipline of theoretical mathematics before the first modern com-

puters were created.

1

However, legal technology is now a rapidly expanding area

of interest as more and more computer software becomes incorporated into the

everyday practice of law.

2

The ingenuity of persons has and inevitably will con-

tinue to enable these technologies to pervade the legal profession.

3

The newest

innovations are in the uses of machine learning (“ML”) and artificial intelligence

(“AI”) (collectively, “ML/AI”).

4

The lack of technical training has caused many lawyers to misunderstand how

these programs work.

5

Without a proper understanding of the underlying princi-

ples, lawyers cannot appropriately incorporate these technologies into their prac-

tices.

6

Given scattered opinions

7

that barely grasp the surface of what technology

can and will be able to accomplish, there is a need for uniform and cohesive treat-

ment of ML/AI usage.

8

Existing scholarship has noted several of these issues but

* J.D., Georgetown University Law Center (expected 2022); A.B., Washington University in St. Louis

(2018). © 2021, Augustus Calabresi. Many thanks to the notes team at GJLE for the critical commentary and

editing that contributed to the development of this Note. All errors are my own.

1. See Allen Tucker & Geneva G. Belford, Computer Science: Development of Computer Science,

ENCYCLOPEDIA BRITANNICA (Sep. 1, 2020), https://www.britannica.com/science/computer-science#ref21943

[https://perma.cc/2X59-QM3N].

2. See David Lat, The Ethics of Artificial Intelligence, ABOVE THE LAW, https://abovethelaw.com/

law2020/the-ethical-implications-of-artificial-intelligence/?rf=1, [https://perma.cc/CVX6-RUK8] (last visited

Feb. 20, 2021, 3:41 PM).

3. See id.

4. See id.

5. See Dana Remus & Frank Levy, Can Robots Be Lawyers? Computers, Lawyers, and the Practice of Law,

30 GEO. J. LEGAL ETHICS 501 (2017).

6. See Lat, supra note 2.

7. See, e.g., W. Preston Battle IV, Nicole De. Berkowitz & George T. Lewis III, Artificial Intelligence: State

of the Industry and Ethical Issues, 54-MAR TENN. B.J. 24, 28 (2018); N.C. State Bar Ethics Committee, 2007

Formal Ethics Op. 12 (Apr. 25, 2008), https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2007-

formal-ethics-opinion-12/ [https://perma.cc/CT7J-XWFC] [hereinafter N.C. Ethics Opinion].

8. See ABA HOUSE OF DELEGATES, 2019 Resolution 112 (Aug. 13, 2019).

789

has not gone far enough in seeing the consequences and has yet to develop

dynamic solutions that will be able to adapt to these technologies.

9

Just as tech-

nology has evolved, commentators seem to focus on targeted individual issues

like current developments in electronic discovery

10

or employment ramifica-

tions.

11

This Note will look at some of these individual conclusions and put them

together as they compose the lawyer’s entire work.

This Note will proceed in three primary parts. Part I will discuss what it means

to engage in the “practice of law” through the lens of a now prominent Second

Circuit case, Lola v. Skadden.

12

It will explore the differences between current

computer algorithms and person functions to highlight the implications of the

Second Circuit’s ruling and how courts and professional organizations might

more carefully approach the integration of rapidly developing legal technologies.

Part II will examine the previous analysis in the context of the American Bar

Association’s (“ABA”) Model Rules of Professional Conduct (“Model Rules”).

This part will emphasize how current ethical standards and commentators’ inter-

pretations thereof lead to unclear, impractical, and conflicting results. Part III will

incorporate some of the previous issues to explore what a path forward might

look like. Specifically, there is a need for national regulation, as unlike legal

standards, technology does not change across jurisdictions. This part will tie back

to the underwhelming role courts have played and how other frameworks appro-

priately tailored to the unique issues with ML/AI might better address the ethical

issues considered.

I. DEFINING THE PRACTICE OF LAW: SEPARATING PERSON

FROM MACHINE

This part will cover three fundamental sections that will help lay a foundation

for the later discussion, which more specifically addresses a lawyer’s obligations

and how they can be met. The first section provides technical background on ML/

AI and how current software is incorporating them into legal practice. The second

section examines the Lola case’s ruling on what constitutes the practice of law

and how other legal entities have addressed the issue. The third section applies

the previously developed legal standard to current algorithms to determine

whether they might merit regulation the same way a person practicing law does.

9. See, e.g., Nicholas Barry, Note, Man Versus Machine Review: The Showdown Between Hordes of

Discovery Lawyers and A Computer-Utilizing Predictive-Coding Technology, 15 VAND. J. ENT. & TECH 343

(2013) (arguing that predictive coding is the solution to rising discovery costs); Katherine Medianik, Note,

Artificially Intelligent Lawyers: Updating the Model Rules of Professional Conduct in Accordance with the

New Technological Era, 39 CARDOZO L. REV. 1497, 1527-28 (2018) (proposing a model rule comment that

lawyers must cross check all results generated by AI).

10. See, e.g., Barry, supra note 9.

11. See, e.g., Remus & Levy, supra note 5.

12. Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, 620 Fed. Appx. 37 (2d Cir. 2015).

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