Is artificial intelligence (AI) the answer to the prayers of many people? For ages most of the population has been in search of options/replacements for the need of engaging attorneys?
AI is the simulation of human intelligence by machines, especially computer systems. AI chatbots such as ChatGPT are a new technology that is rapidly transforming the internet industry and many job functions across all industries. Chatbots are computer programs designed to simulate conversations with human users and are already replacing human workers in the workplace.
Most of us have been using AI without knowing it. When drafting an email or text message and there are spelling/autocomplete suggestions for sentences, that is AI at work.
Members of the corporate world and Congress have recently expressed concerns about the dangers of AI. They are concerned about AI technologies causing harm, such as facial recognition, that can be used to violate privacy rights. Yet, as of today, no bill has yet been proposed in Congress to protect individuals from the potential harm caused by AI. The aged old problem remains with technology that most lawmakers are just now learning what AI is.
The Federal Trade Commission (FTC) has issued consent orders against companies that have used AI in deceptive ways. In one case, the FTC issued a consent order against a company that deceived consumers about its use of facial recognition technology and its retention of the photos and videos of users who deactivated their accounts. The FTC has also proposed commercial surveillance rules to restrict the collection of data used in AI technology.
The FTC has recently issued guidance warning advertisers not to make false or unsubstantiated claims about AI products. The FTC highlighted four major considerations: (1) do not exaggerate what your AI product can do; (2) do not promise that your AI product does something better than a non-AI product without adequate proof; (3) know about the reasonably foreseeable risks and impact of your AI product before putting it on the market (“If something goes wrong – maybe it fails or yields biased results – you can’t just blame a third-party developer of the technology. And you can’t say you’re not responsible because that technology is a ‘black box’ you can’t understand or didn’t know how to test”); and (4) consider whether a product actually uses AI. If a product is not actually AI-enabled, then do not claim that it is an AI product. Merely using an AI tool in the development process is not the same as the product having AI in it. The guidance concludes: “You don’t need a machine to predict what the FTC might do when those claims are unsupported.”
AI is currently being used in the legal industry in many ways, such as assisting with document processing and classification for a wide range of legal matters, including due diligence, contract and document review, contract management, and deal analysis.
This raises the optimistic question: Can AI replace attorneys?
Unfortunately, my answer is no. To the best of my knowledge, AI cannot (at least not yet) do the following, which are done and billed by attorneys:
- Confer with clients to determine their objectives and concerns
- Discern best strategies and avenues to be explored
- Determine what claims are being made in the advertising which require substantiation or confusion to consumers
- Review & Edit an agreement to advance the client’s interests
- Identify potential copyright, trademark and right of publicity issues and provide risk mitigation strategies
- Provide a risk assessment to a client, such as the risk of a challenge by regulators, competitors or consumers
- Take into account a client’s risk tolerance when providing legal advice
Moreover, an AI chatbot cannot provide legal advice under the rules of professional conduct, meaning no protection of attorney-client privilege for any conversations that a client may engage with an AI chatbot.
Unfortunately for some, despite the advances being made by AI, including in the legal profession, currently, it is unlikely that AI will be able to replace the legal profession. There are differences between providing general legal information and delivering legal advice specific to a client’s needs. AI is adept at building on what has been done before but lacks the creativity and abstract thinking that are required for many legal needs. And some would argue that AI lacks the human touch (more than a lawyer) that embodies or at least creates the important attorney-client relationship and privileges.