Most lawyers have fretted from time to time about the encroachment of artificial intelligence on the work that they do. Although it is a relief not to have to do document review until your eyes are bleary, and it is also a relief not to have to draft basic discovery documents (those pesky interrogatories, requests for admission, and document requests) or respond to them with objections and redactions galore, up to now, there has been some comfort in thinking that certain duties, responsibilities, and obligations that lawyers have cannot be replicated by AI. Is that still the case?
How many people have read the recent stories about the creation of an AI actress? This development has the entertainment world in a tizzy and rightfully so. Her name is Tilly Norwood (a nice name for an actress), but Tilly is not a real person. She is an AI creation. I am not making this up.
Just Google Tilly’s name to read stories about her and what her potential is to affect the entertainment industry and not in good ways. She doesn’t have to belong to a union to get work, she doesn’t have a limit on her working hours, and she probably won’t need publicists, agents, and others in the entourage that have been hallmarks of the talent industry.
I started thinking (always perilous for me) about what would happen if AI started to create lawyers? Would there be any restrictions on the kind of work that they could do? Let’s name one lawyer: Arthur Indolent (aka AI for short). What would AI be allowed to do? Would AI be able to take or defend depositions? Would AI be able to meet with clients (most likely over Zoom) and provide legal advice? What would that do to the requirement that attorneys be admitted to a bar? Would AI create his own bar license? Would AI even need to pass a bar exam to practice, let alone go to law school? (Note that Utah has announced an alternative path to licensing.)
What about the ethical responsibilities and duties of real life lawyers? Would they apply to AI and its cohort? If not, would there be any guardrails to prevent horror stories like Tom Girardi and others? Would AI have to maintain a trust account? And would there be any reason for AI to fulfill CLE requirements? My mind explodes with all the possibilities of AI as lawyers. How do we compete?
But I am not done yet. How would AI act in the courtroom? Would an artificial intelligence lawyer be able to represent clients in court? If so, how? And if not, why not? We are already seeing the use of AI in mediation. Not being bashful about using AI to prove my point, here is part of what AI (not Arthur, but artificial intelligence per Google) reports: “AAA [American Arbitration Association] is leveraging AI to improve the efficiency and accessibility of mediation services, not to replace human mediators entirely.“ Read that again. “Not to replace human mediators entirely.” What does “not replace entirely” mean? What does that mean for lawyers who mediate and those full-time mediators? Should we start looking for side gigs? What will be their futures? What will be ours?
How will a court discipline AI that hallucinates? Will there be any remedy? Sanctions may well be laughable. Collectible? Please. And what if as it probably will, AI wants to become a judge someday? Is that a possibility? What about jury panels? Will they be composed of AIs as well?
And I won’t even get started on judicial AI FUBARS. Those deserve their own column.
We can’t say that Tilly Norwood and her cohorts will leave us alone. Junior Tilly Norwoods are already present at the basic levels of lawyering. Unfortunately, I am not hallucinating about all this, although perhaps some of you will think so. AI and its cohorts are coming for us, in ways big and small. What use will a bar exam be if AI doesn’t need one to take one? What will differentiate us from them? I know, many of you are chortling now, but remember HAL from “2001: A Space Odyssey.” Who had the last chortle there?
And for those Biglaw firms that populate ATL’s Spine Index, using AI “persons” might be a way to staff up, replacing lawyers who have left. The good news for those firms is that an AI replacement lawyer need not have a spine.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
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