Author:Bigda, Jordan

The legal profession is ripe for change, and technology is that change. (5) Legal innovators are looking for new ways to streamline and make practicing law more efficient and less expensive for clients. (6) One way of achieving this is through the use of artificial intelligence in the performance of legal tasks. (7) Artificial intelligence is an adaptation of how lawyers utilize technology to help them become more efficient by saving time and money. (8) New technologies may have some effect on the amount of lawyers being hired to do what lawyers have traditionally done in the past, but it will also likely lead to new and different employment opportunities for lawyers in the future. (9) Therefore, robots will not be the end of lawyers, but rather, will open up a new area within the legal profession. (10) While a professional era in the legal field has ended, we are now in the midst of forming a new era of advanced legal technology and the further demise of the traditional law firm. (11)

Additionally, there is an ethical line that must be drawn on how far the legal profession and other professions using artificial intelligence can utilize these programs in areas such as reasoning, interactions, and even court appearances. (12) Research on this subject does not look at the legal implications and issues of using artificially intelligent lawyers and how this may effect society. Robots or their computer programmers are not lawyers, so if robots are practicing law, is this considered the unauthorized practice of law? (13) Moreover, is this ethically permissible if a licensed lawyer is inputting the legal information, arguments, and rules into the artificial intelligence program? This Note will look at the legal issue of non-lawyers performing legal tasks and the ethical and statutory contradictions in the legal profession. Additionally, this Note will foreshadow future law that will not allow robots or "artificially intelligent lawyers" to advocate for clients in court, negotiate on behalf of clients, or facilitate mediations.

  1. History

    Over the past 40 years, the way law firms have been structured and how they operate has changed dramatically, mostly due to advances in technology. (14) Legal scholars note that large firms were extremely inefficient in the 1980s, a time where large firms were also on the rise. (15) Consequently, in the 1980s, there was a significant increase in the amount of lawyers in the United States. (16) In 1980, there were around 542,000 lawyers in the United States, and by 1984, that amount increased to roughly 649,000. (17) With this rapid increase in the number of lawyers, firms increased in size and more associates were hired. (18) Associates were paid very highly to perform basic tasks such as proofreading briefs, reviewing documents, and to continuously reinvent the wheel. (19) However, this began to change after the 1980s when law firms became savvier by hiring outside vendors, paralegals, and contract lawyers to cut costs on tasks associates were previously doing. (20)

    Paralegals and legal assistants are non-lawyer support staff who have an understanding of the law and perform tasks such as researching cases, preparing discovery, interviewing clients, witnesses and other non-parties, preparing case summaries, and general case management. (21) Even though the lawyer does not perform these tasks, they still bill the tasks to the client, but at a lower rate. (22) The issue of what and how lawyers could delegate tasks came up in the Supreme Court of New Jersey's Committee on the Unauthorized Practice of Law. (23) This committee decided that attorneys were able to delegate legal tasks to paralegals, as long as the attorney or firm maintains direct relationships with their clients, supervise the paralegal's work, and remain responsible for work product. (24) This decision gave lawyers even more leeway in outsourcing tasks to paralegals that were previously performed by associates. (25) However, even under this Committee decision, paralegals still cannot advise clients, mediate, or negotiate on behalf of clients. (26) Due to this decision, the lawyer must perform these tasks. (27)

    Towards the end of the 1980s, in addition to the changes in the organizational structure based on cost-cutting, technology was also impacting the phenomenon of the depleting number of associates. (28) The major technological advancement in this decade was computerized legal research in 1983. (29) At this time, Westlaw and Lexis became accessible via personal computer (PC), which increased efficiency and decreased costs because firms no longer needed as many associates to do legal research and did not need the physical space in the law office to house law libraries. (30) Additionally, in 1986, firms began to utilize laptops, which allowed lawyers and paralegals to work more efficiently and save more memory onto their hard drives. (31)

    The 1990s began the acceleration of the mergers and acquisitions of law firms. (32) This was the inevitable result of too many inefficient law offices with too many inefficient lawyers. (33) A driving factor of merging law offices was the theory of globalization. (34) In the mid-1990s, the Internet reached 50 million users and thus revolutionized the way businesses ran, including law firms. (35) Rapidly, the need for many large firms disappeared as communication became easier. (36) Additionally, the 1990s was also a time of the mobile revolution, meaning a lawyer no longer needed to be at a desk or a land-line to communicate with clients or colleagues, they could communicate with them from any location. (37)

    In the 2000s, cloud computing and smartphones ruled the tech industry and seeped into the business practices of all professionals, including those in the legal field. (38) These two pieces of technology gave lawyers the ability to work from almost any location on nearly any matter, and it also has allowed solo and small firms to compete more aggressively with larger firms. (39) Another stride in technology was the increased use of case management systems in large and small law firms. (40) These systems such as Clio, MyCase, and Legal Files are a more efficient and convenient method of managing cases and clients, and includes client contact information, calendars, documents, and automation features that allow lawyers to keep essentially their entire practice in one place on a hard drive or on the Cloud. (41)

    Additionally, in the early 2000s, law firms began the outsourcing of legal services to India. (42) Simple tasks such as legal research and document review, previously performed by associates and later paralegals, are now done overseas because it is more cost and time efficient. (43) Online non-lawyer legal services also became prevalent with the emergence of Rocket Lawyer, LegalShield, and Legal-Zoom. (44) These legal sources give anyone the ability to create their own legal documents and legal forms, such as contracts, wills, business formation documents, and bankruptcy filings. (45) Even though these non-lawyer sites are creating documents typically created by lawyers, LegalZoom, LegalShield, and Rocket Lawyer all proclaim that they are not a substitution for a lawyer and further, do not provide legal representation. (46) However, clients are using these sites for a legal purpose, i.e. writing a will, something that a lawyer can fully perform. (47)

    As LegalZoom became more popular, there was pushback from the legal community against LegalZoom further encroaching into the legal market, resulting in lawsuits filed against LegalZoom for the unauthorized practice of law. (48) For example, in Janson v., Inc., (49) LegalZoom was sued for the unauthorized practice of law, specifically the level of human involvement that LegalZoom employees had in the production of documents. (50) Under Missouri law, and in previous cases such as In re Thompson, (51) Missouri held that companies that offer document assembly software for "do-it-yourself" legal documents are not the unauthorized practice of law. (52) However, the Janson court denied summary judgment to LegalZoom (53) and the case ultimately settled for an undisclosed amount. (54)

    The South Carolina Supreme Court was the first court to hold that LegalZoom was not engaged in the unauthorized practice of law in Medlock v., Inc. (55) In Medlock v., Inc., the plaintiffs alleged that LegalZoom was violating the South Carolina statute against the unauthorized practice of law by some of LegalZoom's interactive self-help form documents. (56) The Court ultimately accepted LegalZoom's settlement agreement with the plaintiff, but stated that LegalZoom was not engaged in the unauthorized practice of law because nineteen out of twenty of the LegalZoom forms in question were already available to South Carolina residents through the state of South Carolina's government self-help website. (57) Interestingly, South Carolina courts have held that they will determine what is the unauthorized practice of law on a case-by-case basis, instead of employing a clear cut definition. (58) Despite the differences in law from South Carolina to other states, which have not ruled similarly to South Carolina, legal ethicist, Deborah Rhode states in regard to LegalZoom that "[t]hey've got a couple million satisfied customers and it's going to be really hard for anyone to shut them down." (59)

    In order to keep up with today's fast-changing legal market and pushback from the legal community in the aforementioned lawsuits, LegalZoom as well as LegalShield, and Rocket Lawyer have begun to alter its business models. (60) For example, LegalZoom is beginning to offer legal advice for clients by contracting lawyers from different states. (61) This is further bringing legal services to the Internet by allowing customers to build a relationship with a lawyer online. (62) Similarly, Rocket Lawyer provides an "On Call"...

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