New York State Bar Issues Recommendations for AI Use
May 13, 2024
Last month, the New York State Bar Association (NYSBA) Task Force on Artificial (Intelligence (AI) issued a report, including a list of recommendations, for the integration of AI technology into the practice of law.
The use of AI among attorneys is a hotly contested subject, particularly in the wake of the Avianca airline case where two New York attorneys filed a brief with the court that was written using ChatGPT and cited fictitious legal cases.
The task force's report underscores the dual nature of AI: its immense potential and its inherent risks. AI technologies promise efficiency, accuracy, and innovation, revolutionizing how legal professionals deliver services. This can be particularly tempting for solo practitioners and boutique firms who may not have the workforce of larger firms. From document review to predictive analytics, AI streamlines processes, freeing attorneys up to focus on more of the big picture matters. However, with these benefits come ethical, regulatory, and socio-economic challenges that cannot be dismissed.
One of the key takeaways is the importance of understanding AI's limitations. While AI can augment human decision-making, it is not infallible, as evidenced by the Avianca case. Biases embedded in algorithms, data quality issues, and lack of interpretability pose significant risks.
Ethical considerations loom large as well. As AI permeates legal practices, ensuring fairness, justice, and integrity is paramount. As legal professionals, we must uphold ethical standards, guarding against AI-driven discrimination or erosion of privacy rights.
Regulatory frameworks play a pivotal role in shaping AI's trajectory in the legal sector. While AI is here to stay, attorneys must find a balance between fostering innovation in our legal practices while safeguarding public interest, and, most importantly, the interests of our clients.
Clear guidelines on data privacy, algorithmic transparency, and liability are essential to mitigate risks associated with the expanded use of AI.
AI tools like ChatGPT and Lexis+ AI can and do play a role in augmenting legal services, empowering lawyers to deliver more efficient, accessible, and equitable outcomes. There is no substitute for the real-world experience, logic, and intuition of a seasoned attorney. Legal matters are often layered with nuance, and trusting AI to capture the ebbs and flows of every matter is a risk none of us should be willing to take, even if its seemingly effortless efficiency is tempting.
NYSBA The task force developed the following recommendations for the NYSBA House of Delegates:
- Adopt and Update AI Guidelines: The NYSBA should adopt the outlined AI/Generative AI guidelines and establish a dedicated section or committee to regularly update them as technology evolves.
- Educational Initiatives: Emphasize educating judges, lawyers, law students, and regulators on AI technologies to ensure they can apply existing laws effectively. This includes understanding client privacy through "closed system" AI that does not store queries as training data.
- Address Unregulated Risks: Legislatures and regulators should identify and address AI-related risks not covered by existing laws, potentially through new legislation after thorough hearings and expert consultations.
- Revise Professional Conduct Rules: Include AI competence in the Preamble to the Rules of Professional Conduct and expand existing rules to require lawyers to stay informed about AI technologies that can enhance their practice.
- Tailored AI Governance: Develop AI regulations that are tailored to specific risks and sectors, ranging from comprehensive frameworks to sector-specific approaches. This should balance the need for local and global cooperation due to AI’s broad impact.
A 2023 report from the American Bar Association found slightly less than 11 percent of attorney surveyed were actively using AI in their practice. Nearly half of the respondents said they were not interested in purchasing AI-based technology tools or did not know.
The expectation is that, as AI continues to improve, those numbers will shift dramatically. The NYSBA report is a crucial step to ensure the state bar and its members are well-informed and prepared to adapt to the inevitable day when AI is commonplace in the practice of law.
Click here to view the full report from the NYSBA Task Force
Click here to view the 2023 ABA AI TechReport
Sarah Rera is a litigation attorney with Gross Shuman P.C. who focuses her practice in the areas of personal injury and business litigation. She has served as trial counsel in multiple complex business disputes and personal injury claims in New York State Supreme Court, receiving numerous successful verdicts for her clients. She is also an experienced appellate practitioner and has appeared before the Appellate Division and the New York Court of Appeals, the highest Court in New York. She can be reached at 716-854-4300 ext. 289 or srera@gross-shuman.com.
