Experts foresee legal malpractice risk for those who eschew AI

As reports of hallucinated case citations and other misadventures have some lawyers pumping the brakes on embracing generative artificial intelligence tools, experts say the day is coming when failure to use available AI technology in representing a client may be deemed a breach of the standard of care.

Boston attorney Christopher E. Hart said that while there are cases involving a lawyer’s misuse of AI, he’s unaware of any malpractice claims based on a lawyer’s failure to use available AI tools. That’s because there is presently no clearly defined standard of care for such claims, he said.

But Hart said that will change as the legal profession gains more experience in the use of AI platforms and a better understanding of their potential.

“I’ve had these conversations with colleagues over the past year or so,” said Hart, who practices in data protection, cybersecurity and artificial intelligence. “This is coming — it’s not a question of whether; it’s a question of when.”

Cyber law attorney Brian J. Lamoureux, a member of the Rhode Island Supreme Court’s Committee on Artificial Intelligence and the Courts, compared the legal profession’s current embrace of AI to past experiences with the adoption of email and online research.

“With electronic mail and online research tools, we do see a standard of care that everyone benchmarks as no-brainers,” Lamoureux said. “But using email and online research tools are low-risk activities. I view the adoption of AI as high risk. There is a larger caution sign associated with the adoption of AI.”

According to Lamoureux, reports of lawyers running into trouble for misusing AI has created an “atmosphere of reluctance” that inhibits many from adopting the technology and is one reason why, for now, it’s unlikely that an attorney would be sued for failing to use the technology in their practice.

“The second reason you’re not seeing cases yet, and why you might not see them for a while, is the question of how a plaintiff suing for malpractice is going to be able to prove that the failure to use an AI tool caused the harm,” Lamoureux said. “AI tools are so ‘black boxed’ that even the [tech] companies have trouble explaining how they work. It’s going to be an uphill battle for someone to say, ‘Had you used this tool in this way at this point in time and using this prompt, the outcome would have been different.’”

Virginia attorney Eileen Garczynski, an advisor to the American Bar Association’s Standing Committee on Lawyers’ Professional Liability, says policyholders often ask her whether claims over the use or misuse of AI are covered.

“My answer is yes, they’re covered, because they’re using AI in the furtherance of their professional services,” Garczynski says.

Garczynski conducts an annual survey of legal malpractice claims. In compiling data for a survey released earlier, she said the numbers showed a “huge uptick” in AI-related claims.

“But no one is seeing cases for [a policyholder] not using AI,” she said. “That’s just not a thing yet.”

The “crux” of any legal malpractice case is determining the standard of care, Hart noted.

“There’s simply no standard of care right now in terms of the use of AI or the appropriate use of AI,” he said. “There are clear guardrails as to the misuse of AI, but not in terms of how a reasonable attorney under the circumstances is appropriately expected to use AI to assist clients.”

In terms of standard of care, Hart likened the experience of lawyers currently coming to grips with AI to the introduction of email and how, over time, it became an essential feature of any legal practice.

“The failure to use email can be a problem, for example, in regard to electronic filing,” he said. “A standard of care is that you need the technology in order to be able to file, receive updates, receive notices — whatever the case may be. But we’re just not there yet with AI.”

Woburn, Massachusetts attorney John F. Weaver points to a landmark 1932 decision from the 2nd U.S. Circuit Court of Appeals written by the legendary Judge Learned Hand, The T.J. Hooper v. Northern Barge Corporation, as shedding light on how the introduction of new technology may shape the standard of care in a tort case.

“[Judge Hand] concluded that a tugboat’s owners’ failure to use the latest technology — which in that case were radio receivers that gave warnings of storms — could amount to the standard of care even though their use was by no means universal,” Weaver says. “So, it doesn’t take all lawyers to use AI for it to become the standard of care, but some agreement by the majority of the bar that AI represents part of the standard of care. I’m not sure we’re quite there yet.”

According to Hart, the key to a malpractice claim would be establishing that the alleged failure to use AI technology was “material” to the outcome in the representation at issue. Such claims would be a challenge unless AI becomes integral to a lawyer’s practice in the way email or the federal court’s PACER online docket system has become in keeping track of deadlines or correcting errors.

Sttill, Hart said the rapid pace of the technology’s development could result in AI becoming accepted as standard practice much sooner than lawyers might anticipate.

The legal profession as a whole is already beginning to draw certain general conclusions about AI, according to Weaver.

“There is a growing consensus that if you want to provide faster service, [AI] is a way to do it,” he said. “And I think there’s a consensus that some clients are requesting or requiring it. But I’m not certain there’s a consensus that if you are not using AI, you are misrepresenting your clients and you are not engaging in the ethical practice of law.”