Issue 62 

Some lawyers still think that developing AI competency means becoming an AI user, or mastering prompt engineering, or experimenting with all the “best” new releases of AI models. But these activities aren’t the core AI competency issues for lawyers. What AI competency really means for lawyers is whether you have learned enough about AI to make informed decisions about AI use and AI risk in relation to the practice of law.  

Developing AI Competency is About Judgment, Not Just Technology 

Developing AI competency involves learning enough about AI in relation to the practice of law so that you can continue to make decisions that align with your professional responsibilities. To begin developing AI competency, lawyers should obtain some foundational knowledge about what AI is, and how it is directly impacting the practice of law. While you don’t need to become an AI expert, you do need to understand how AI has the potential to impact your work as a lawyer. As part of the process of developing AI competency, you will also need to consider how AI may be impacting your clients and their legal issues.  

Comment 8 to the American Bar Association’s (“ABA’s”) Rule 1.1 in relation to lawyer competency explains that lawyers have a duty to keep up with technological changes impacting the practice of law. This means that AI competency is now part of lawyer competency. Before you begin using AI in your law practice, you need to understand not only AI’s capabilities, but also its limitations, and the risks of using AI in legal practice. 

Additionally, if you are a leader in your organization, you need to develop an understanding of how AI may impact your workplace. This will enable you to manage workplace AI risks through education, policies, and procedures. It will also enable you to develop a strategy in relation to the various opportunities for using AI for legal work.    

Again, developing AI competency in relation to practicing law does not require you to: 

• Become a legal prompt engineer; 
• Master coding; or  
• Even begin using AI.  

Instead, developing AI competency means you should develop the requisite knowledge about AI and its impact on the practice of law that will empower you to make informed decisions in relation to AI and your practice.   

Why Lawyers Can’t Afford to Ignore AI 

Some lawyers are reluctant to engage with AI because they view it as overhyped or overwhelming. However, lawyers can’t afford to ignore AI because AI is impacting many different aspects of the practice of law.

AI and Your Professional Responsibilities               

As part of developing AI competency, lawyers need to review the AI-related regulations and guidance of every jurisdiction where they practice, including federal, state, and local bar associations and courts. In the absence of specific guidance from your jurisdictions, the ABA has issued Formal Opinion 512 in relation to AI tools, and Formal Opinion 517 in relation to discrimination in jury selection, including AI-assisted jury selection. Lawyers should also be aware that some courts have found that existing regulations are sufficient in many cases to govern lawyers’ use of AI. For example, numerous courts have found that lawyers have violated Federal Rule of Civil Procedure 11(b) (Representations to the Court) by filing court documents containing hallucinations.  

Lawyers who develop AI competency learn that no generative AI tool that produces written output is hallucination-proof. Many lawyers are using AI tools for legal research and legal writing. These lawyers have modified their traditional workflows to incorporate one or more AI tools. Unfortunately, too many lawyers using AI for such purposes have failed to fully consider their professional responsibilities in relation to their AI use, and have not incorporated rigorous verification procedures as part of their modified workflows. This has resulted in hundreds of instances of lawyers filing court documents containing hallucinations.  

AI and Confidentiality 

Additionally, lawyers who develop AI competency understand that AI tools do not all offer the same data confidentiality and privacy protections. Some AI tools may use the data that you input to train their AI models, or for other commercial purposes, while other AI tools offer enhanced data protections that align more closely with a lawyer’s professional responsibility to safeguard confidential client information. Lawyers who develop AI competency learn that if someone inputs confidential information into an AI tool with inadequate data privacy and security protections, that error cannot be undone.   

Workplaces that do not regulate which AI tools may be used in the performance of work are exposed to a greater risk that employees might breach client confidences through inappropriate AI use. Employee use of AI tools that have not been vetted and approved by organizational leadership is often referred to as “shadow AI” use. Lawyers who develop awareness of the risks associated with using AI tools that do not offer adequate security or privacy protections can take steps to mitigate this risk through workplace education and policies.   

AI Use by Your Collaborators 

In some cases, lawyers who have not been using AI have found themselves in trouble for a collaborator’s AI misuse. There have already been many publicized incidents involving attorneys who were not themselves using AI improperly, but have been sanctioned or cautioned for their connection to a situation where a collaborator misused AI without their knowledge. Examples include: 

• A colleague who was misusing AI and filed a brief that was riddled with hallucinations; 
• Improper use of AI by co-counsel; 
• An expert witness who submitted a declaration including hallucinated citations to studies;   
• AI misuse by a contract attorney; and   
• Improper AI use by a law clerk.   

Lawyers who develop AI competency can reduce their risk of being blindsided by someone else’s misuse of AI, by regulating which AI tools may be used in a workplace, setting policies and procedures for proper use of those AI tools, and requiring disclosure of AI use and verification procedures by collaborators both inside and outside their organization.  

AI and Your Clients 

In addition to lawyers’ professional responsibility to keep up to date on technological changes to the practice of law, lawyers also must account for how AI is impacting their clients. Some lawyers may have clients who are experiencing AI-related legal issues. There is a proliferation of AI-related lawsuits working their way through the legal system in areas of law including copyright infringement, copyright and patent applications, privacy, discrimination, facial recognition, healthcare, libel, lie detection, wiretapping, FOIA, malware, school suspensions, deepfakes, wire fraud, wrongful death, antitrust, civil rights, FCRA claims, and more. 

Even if your clients do not have any AI-related claims or liabilities, your clients may be using AI without directly informing you in efforts to assist you with their legal matter, or to obtain a second opinion on the legal advice you provide. At least one judge has ruled that client communications about their legal matter with an AI tool are not privileged. Part of developing AI competency is deciding how to proactively communicate with clients regarding their potential AI use.  

When a Lawyer is Ready to Begin Using AI in a Legal Practice 

Lawyers should not use AI for legal work until they have developed AI competency. Once a lawyer can make informed decisions about AI use and AI risk, then the lawyer can progress to developing an AI tool strategy for their practice.  

Any AI tool strategy for a law practice should include a structured evaluation process that begins with evaluating the technology improvement priorities of the organization, rather than beginning with experimenting with the most-hyped AI tools for lawyers. Once the organization’s priorities have been identified, then specific AI tools can be evaluated further. Importantly, an AI tool evaluation should always include an assessment of the possible risks associated with using the tool.  

Beyond risks, independent evaluations of AI tools for lawyers have begun to provide useful data on some ways that AI can make a measurable impact on a law practice.   

Learning legal prompt engineering (considered a core AI competency by some lawyers) may not ever be necessary depending on the AI tool(s) you ultimately select, as some AI tools designed for lawyers have automated the prompting process, or do not require prompting at all.  

How Lawyers Can Start Building AI Competency 

Lawyers who are ready to develop AI competency can start by: 

• Developing foundational knowledge about AI and how it is directly impacting the practice of law (if you need a resource on this topic, you can sign up to read the first chapter of my AI guide for free here);   
• Reviewing the AI-related regulations and guidance of every jurisdiction where you practice, and considering how your other existing professional responsibilities apply to using AI in legal practice; 
• Thinking about how you could be impacted by the AI use of your collaborators, and beginning to have conversations about how to make AI use transparent in your collaborative processes through agreements and/or policies; 
• Brainstorming what types of AI-related legal issues your clients may be experiencing; 
• Deciding how to communicate with your clients about their potential AI use in relation to their legal claims or liabilities;  
• Beginning to create workplace policies to regulate AI use and protect confidential client and organization information; and 
• Joining my newsletter to stay up to date on AI-related issues that matter to lawyers. 

If you want help getting started with AI risk mitigation, you can download my free resource: A Lawyer’s First Three Steps to Reduce AI Risk. 

If you're trying to evaluate AI tools responsibly, my CLE walks through a practical framework for assessing and implementing AI tools in legal practice.   

For a more comprehensive resource on AI competency, risk, tool evaluation, and a curated directory of over 250 AI tools for lawyers, you can learn more about A Lawyer’s Practical Guide to AI here.   

Thanks for being here.  

Jennifer Ballard
Good Journey Consulting