What are the consequences of continuing to ignore AI as a lawyer? (Part 1)

Issue 33

If you are a lawyer who is not using AI in your practice yet, it might be because you don’t like AI. Or you may have complicated feelings about AI. Or maybe you just haven’t gotten around to learning about AI yet.  

Your reasons for choosing not to engage with AI to date may be valid. But no matter what feelings you have towards AI, choosing to leave AI on the shelf without pursuing AI competency or considering the available AI options could have consequences. Today we’re exploring some of the potential consequences for lawyers who continue to ignore AI. Let’s begin. 

You May Fail to Meet the Duty of Technology Competence  

You likely know that some lawyers have been sanctioned for improperly using AI. What you may not know is that at least 40 states have adopted a duty of technology competence.[i]  Comment 8 to the American Bar Association’s (“ABA’s”) Model Rule 1.1 (Competence) confers a duty upon lawyers to stay informed about changes in the practice of law, including technological changes.[ii] More specifically, the ABA has recognized that Model Rule 1.1 assigns lawyers a duty to have a reasonable understanding of AI and the AI tools that may benefit their clients.[iii] 

AI is changing the practice of law. If you feel skepticism towards that statement, you may wish to consider that over 200 state and federal judges have issued or amended orders, rules, or guidance in relation to AI use in the courts.[iv] Additionally, all law students now have access to legal industry AI tools during law school, and at least one law school has added a requirement that all first year law students earn a certification in AI and the law.[v] Even if you practice in the minority of jurisdictions that have not formally adopted the duty of technological competence, as a practical matter, failing to develop AI competency may have other competency-related consequences, as detailed below.  

You May be Negatively Impacted by the AI Use of Others in Your Sphere 

Many lawyers who have not developed AI competency yet risk violating court rules or their professional responsibilities, even if they do not use AI. If you do not develop AI competency, you may lack adequate awareness of the potential AI use of others in your sphere, such as your colleagues, co-counsel, and experts. For instance, earlier this year, a lawyer who was unaware that her co-counsel was using AI was sanctioned for permitting her signature to be included on her co-counsel’s motion that included eight hallucinated case citations, and failing to review the motion before it was filed.[vi] Additionally, lawyers were recently cautioned that they may have a duty to ask their witnesses about whether AI has been used to prepare their declarations, and if so, what has been done to verify AI-generated content, after their expert witness filed a declaration containing hallucinated studies.[vii] Lawyers who have not developed AI competency yet may not know that they should be asking their colleagues, co-counsel, and experts about their AI use, let alone the right questions to ask. 

You May Fail to Spot Your Clients’ AI-Related Legal Issues 

Lawyers who have not developed AI competency may not realize the breadth of practice areas where AI-related legal issues could arise. Inside A Lawyer’s Practical Guide to AI, I am tracking and summarizing over 70 AI-related lawsuits in areas including copyright infringement, copyright and patent applications, privacy, discrimination, facial recognition, healthcare, defamation, lie detection, wiretapping, FOIA, malware, school suspensions, deepfakes, wire fraud/money laundering, negligence and wrongful death, and antitrust.  If you haven’t yet developed your AI competency, you likely have not comprehensively considered the ways your clients may need your assistance with AI-related legal issues, and you risk failing to identify their AI-related legal issues altogether.  

Stay tuned for part two, which will focus on potential consequences for lawyers in private practice who don't engage with AI.

If you have a friend or colleague who might find value in this issue of the newsletter, I would really appreciate it if you shared it with them. 

Thanks for being here. 

Jennifer Ballard 

Good Journey Consulting  

 P.S. You can learn more about how you can develop your AI competency and AI strategy more quickly with A Lawyer’s Practical Guide to AI here. 

[i] Tech Competence, LawSites, https://www.lawnext.com/tech-competence (last visited May 7, 2025). 

[ii] Model Rules of Pro. Conduct r. 1.1 at cmt. [8] (Am. Bar Ass’n 1983).  

[iii] ABA, Resol. 112, 5 (2019), https://www.americanbar.org/content/dam/aba/directories/policy/annual-2019/112-annual-2019.pdf.  

[iv] Jessiah Hulle, Litigators Must Do Court-by-Court Homework as AI Rules Flourish, Bloomberg Law (Nov. 4, 2024 1:30 PDT) https://news.bloomberglaw.com/us-law-week/litigators-must-do-court-by-court-homework-as-ai-rules-flourish. 

[v] Julianne Hill, Law students will gain access to LexisNexis’ generative artificial intelligence program, ABA Journal (Dec. 20, 2023), https://www.abajournal.com/web/article/law-students-gain-access-to-lexis-ai-generative-ai#google_vignette; Joe Patrice, Law School Now Requires Students To Get Artificial Intelligence Certification, Above the Law (Jan. 23, 2025 12:55), https://abovethelaw.com/2025/01/law-school-now-requires-students-to-get-artificial-intelligence-certification/. 

[vi] Order on Sanctions and Other Disciplinary Action at 10, Wadsworth et al. v. Walmart Inc. et al., No. 2:23-cv-00118 (D. Wyo. filed Jul. 6, 2023).  

[vii] Order Granting in Part and Denying in Part Plaintiffs’ Motion to Exclude Expert Testimony and Denying Defendant’s Motion for Leave to File an Amended Expert Declaration at 9-10, Kohls et al. v. Ellison et al., Case No. 0:24-cv-03754 (D. Minn. filed Sept. 27, 2024).