“Not all crazy ideas are great, but all great ideas are crazy.” – Mike Posner
Since it’s clear that lots of lawyers still don’t either understand or heed the risks of GenAI, perhaps it’s time for a crazy idea: mandatory CLE on just this subject.
Ask a room full of lawyers when giving a GenAI presentation who is using GenAI and you still get blank looks and few hands. Yet the GenAI train has clearly left the station.
And every day we hear of lawyers being sanctioned for citing cases that don’t exist or which are inaccurate even recently in the appeal of disciplinary order. So those that are using it are either ignorant of what GenAI is or just choose to ignore the risks.
Clearly what we have here is failure to communicate, to borrow a line from an old movie.
A Solution
Situations like this always inspire asking a “what if” question: what if state bar associations and courts promulgated a mandatory GenAI CLE requirement for all lawyers?
I know what you’re saying. You’re rolling your eyes and saying just what we need, another boring CLE requirement. Another room full of lawyers or a bunch of squares on a computer screen with bored lawyers checking their emails and waiting for it to be over.
But before you conclude this is the dumbest idea you’ve ever heard, let’s look at some facts.
Technological Competence Is Critical to Lawyer Competency
A recent Reuters’ Practical Lawyer article talked about the state of technological ethical compliance. The article, written by two Redgrave partners, Erica Zolner and Benjamin Redgrave, is a good summary of the present requirements, relevant ethical rules, and opinions relating to a lawyer’s obligation.
The article notes that over 39 states have adopted Comment 8 to the ABA Competency Rule which states lawyers should stay abreast of the benefits and risks of relevant technology. And it also highlights that several states and the ABA have weighed in particularly on a lawyer’s ethical duties when it comes to the use of GenAI.
The authors also note that three states — New York, Florida, and North Carolina — have a mandatory one-hour tech training requirements. Lawyers like precedent: there now is some for more specific tech-related training.
According to Zolner and Redgrave:
[M]any attorneys have struggled with this long-established ethical principle in the face of rapid technological change impacting litigation practice. Some attorneys are ignorant of evolving technologies or fear them as unduly complex, while others rely too much on technologies and fail to understand their limitations… Technological issues are no longer relegated to substantial cases or large corporate matters. Instead, they pervade all litigation, regardless of size or complexity, particularly in a post-COVID-19 world.
Okay, but you say, GenAI is just another technology lawyers need to keep abreast. No need to make everyone sit through a seminar or webinar just on it. Right?
Wrong. GenAI is too ubiquitous and potentially too disruptive to be lumped in with tech in general. That’s the reality.
The GenAI Reality
Want some more facts? Here’s a few:
- Every day, lawyers are being fined and embarrassed for citing fictitious cases or citing cases inaccurately because they rely on GenAI.
- Nevertheless, the use of GenAI tools, particularly publicly facing ones, are ubiquitously used by lawyers and laypeople. We have to assume that will only increase.
- Lawyers and legal professionals may be using GenAI tools in ways that jeopardize client confidentiality and in ways that could waive privileges.
- Lawyers and legal professionals are being inundated by vendor claims and other information, much of which is hyperbole.
- Lawyers and legal professionals are under increasing pressure from clients to use GenAI tools.
- Clients themselves are using these tools in good ways but often in bad ways, making inappropriate decisions and creating a discovery trails.
- GenAI may change the way lawyers bill, work, and their culture in ways that can’t be predicted but for which preparation is needed.
- There are indeed ways to use GenAI tools for lawyers and legal professionals and clients benefit if used correctly.
All of which suggests and even compels the need for increased training and education on GenAI.
The Practical Benefits
There are a bunch of advantages to making GenAI training mandatory.
A mandatory CLE course could cover such things as how LLMs and GenAI works, what it is and can do, and what it can’t. It would help lawyers understand and avoid the resulting risks of hallucination and inaccuracies. It could make them understand why verification is critical and reduce the number of incidents that are eroding trust in the process.
It would help avoid waiver issues and the inadvertent breach of privacy. It would help lawyers advise clients as to the risks and benefits of these tools and what not to do. It would help legal professionals sort through the tools and vendor claims and decide what tools best fit their needs.
It would assist in incorporating GenAI tools into the practice and achieving the benefits of the tools for lawyers and their clients. It would aid them in planning for the potential disruption these tools can bring. It would show them how to better supervise those who will undoubtedly be using these tools in their firms and develop appropriate use guidelines.
Such a course would set a baseline level of competence that all lawyers in today’s world simply have to have. It would send a message to everyone on how important and pervasive these tools are.
A basic course would cover at a minimum what LLMs are, why they pose risks (and how to avoid them), and how to supervise others who will use them. It would also demonstrate the benefits. And it could be standardized and delivered at scale. It’s not complicated.
An Idea Whose Time Has Come
GenAI tools are too important and impactful on the profession to leave it to individual lawyers and legal professionals to decide whether to learn about the tools. From courts to clients to those whom lawyers owe various duties, all will be impacted.
Yes, there are objections and concerns. Bar associations may struggle to develop quality curriculum, and vendors will immediately lobby to get their products “CLE-approved.” Lawyers could simply tune out and not listen; after all, most lawyers resent CLE requirements already. A poorly designed course could do more harm than good, leaving attendees with false confidence. One hour may not be enough. It could become outdated and irrelevant. It’s too costly to implement.
But none of these are reasons to avoid trying. Sure, lawyers may not listen. But some will. And multitasking is an issue with any CLE but that’s not considered a reason to throw the baby out with the bath water.
If nothing else, such a requirement would send a strong message to lawyers and legal professionals that GenAI is here to stay, that it’s impacting the practice, and that it’s important to be knowledgeable about it to represent clients, both now and tomorrow.
Yes, the course would have to be developed carefully. But bar associations and courts have tools in place to evaluate all CLE to see if they qualify for credit. The same criteria with a bit of increased vigilance would enable the proper policing.
Change is occurring quickly. But that’s often the case for CLE subjects and we still manage. And there would be some cost. But that cost pales in comparison to the sanctions and potential malpractice claims that would otherwise occur.
The bottom line is that GenAI threatens the profession and those it represents with a change that could be of a magnitude the likes of which we have never seen. Its use is increasing. The risks are real, as are the benefits.
We can’t afford to not require practitioners to be prepared and ready. We don’t need any more headlines about sanctioned lawyers.
Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.
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