- FEATURE ARTICLE: The Ethics of Using Nonlawyer Assistants in Law Practice
- NEW AUTHORITY: Generative AI Mishaps
- ETHICS & MALPRACTICE RESEARCH TIP: Selected Articles from The Current Index of Legal Periodicals
- A BLAST FROM THE PAST: An Officer of the Court
EDITED BY: Professor Mike Hoeflich
PUBLISHED BY: Joseph, Hollander & Craft LLC
June 30, 2023
FEATURE ARTICLE: The Ethics of Using Nonlawyer Assistants in Law Practice
In recent years, there has been increasing interest in the ethical rules governing lawyers’ and law firms’ use of nonlawyer assistants. On June 7, 2023, the ABA Standing Committee on Ethics and Professional Responsibility added to the growing commentary on this subject with Formal Opinion 506, which explores the use of nonlawyers to do client intake tasks.
The Opinion begins with a general statement:
Lawyers may train and supervise nonlawyers to assist with initial client intake tasks if the lawyers have met their obligations for management and supervision of the nonlawyers pursuant to ABA Model Rule of Professional Conduct 5.3 and prospective clients are given the opportunity to consult with the lawyers to discuss the matter.
Model Rule 5.3 requires lawyers who are partners or managers in a firm to ensure that the firm has policies that assure a nonlawyer’s conduct is “compatible” with the professional and ethical obligations of the lawyer. The Opinion notes that for-profit law firms often use nonlawyers to do relatively complex tasks:
…for-profit law firms have offered limited scope online legal services that provide website intake questions, a menu of available limited scope legal document completion services (such as simple powers of attorney, LLC formation, property deed transfers, and name changes), a conflict checking algorithm, and then “click-to-accept-terms” engagement agreements. Delegating initial client intake to nonlawyers also is common in mass tort and class action practices. There, trained intake personnel may check for conflicts of interest, collect basic information from prospective plaintiffs or class members for lawyers to ascertain their eligibility to make a claim, and explain how fees and costs are charged in such cases. If the prospective client meets the eligibility criteria and specifics set forth by the lawyers, then the intake personnel send the prospective clients the standard fee agreement for consideration.
While acknowledging the many benefits of using nonlawyers for these tasks, the Opinion urges, “Without proper policies, training, and supervision in place, this delegation could lead to ethical violations and unfortunate consequences for clients and lawyers.”
New Authority: Generative AI Mishaps
It sometimes seems that AI has taken over the practice of law. Certainly, numerous AI programs are being marketed to lawyers and law firms; equally certain, they are creating problems. Perhaps the most serious ethical and practical problem discovered to date is that created by lawyers who use “generative AI.”
George Lawton, a tech journalist, defines “generative AI” as follows:
Generative AI is a type of artificial intelligence technology that can produce various types of content, including text, imagery, audio and synthetic data. The recent buzz around generative AI has been driven by the simplicity of new user interfaces for creating high-quality text, graphics and videos in a matter of seconds…
The rapid advances in so-called large language models (LLMs) — i.e., models with billions or even trillions of parameters — have opened a new era in which generative AI models can write engaging text, paint photorealistic images and even create somewhat entertaining sitcoms on the fly. Moreover, innovations in multimodal AI enable teams to generate content across multiple types of media, including text, graphics and video. This is the basis for tools like Dall-E that automatically create images from a text description or generate text captions from images.
What has been so exciting—and controversial—is the use of generative AI in law practice to produce research memoranda and court documents including briefs. The benefits of generative AI are obvious, as are the extreme ethical risks they pose. Several months ago in the LEMR we pointed out some of these risks and predicted that lawyers who became first adopters of generative AI to produce practice documents might well run afoul of the Rules of Professional Conduct. Indeed, a number of ethics experts cautioned against such use. Unfortunately, lawyers have already faced judicial ire because of this.
ETHICS & MALPRACTICE RESEARCH TIP: Selected Articles from The Current Index of Legal Periodicals
1. Ethan Wright, Note, A Downward Spiral: The Relationship Between Distrust and Regulation in the Legal Profession, 45 J. Legal Prof. 261 (2021).
The American legal profession has always jealously guarded its independence from outside interference. This autonomy from outside control depends upon public trust in the profession. Many would argue that various events in the past decade have severely compromised this trust.
2. Gordon Goodman, The Ethics of Cryptocurrency, 18 Hastings Bus. L.J. 175 (2022).
Cryptocurrency remains a complex and risky medium of exchange, but many individuals—some of ill repute—are using it to pay for goods and services, including legal services. Lawyers who contemplate using cryptocurrency or accepting it as payment must be certain they understand it and the risks associated with its use.
A BLAST FROM THE PAST
An attorney at law is an officer of the Court. The terms of the oath exacted of him at his admission to the Bar prove him to be so; “you shall behave yourself in your office of attorney within the court, with all due fidelity to the court as the client.”
—In the Matter of Austin, The Register of Pennsylvania 245 (Samuel Hazard ed., 1835)
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