by Kim, Lahey & Killough Law FirmAdopting AI – South Carolina Lawyer
ADOPTING AI: IT’S NOT IF – IT’S HOW
In an article for South Carolina Lawyer, Kim, Lahey & Killough firm founder Doug Kim discusses the risks and rewards of the responsible use of AI for attorneys and law firms. While most in the legal profession bring a cautious approach to the use of AI, this article expounds on the positive benefits of the use of the transformative technology for both attorneys and their clients.
Will AI replace lawyers? No. AI will not replace lawyers but instead will serve as a powerful tool to enhance their capabilities, much like how a high-quality instrument amplifies a professional musician’s training and expertise. AI cannot replace the essential human elements of legal practice. Complex legal matters require nuanced judgment, ethical reasoning, and the personal connection that only human lawyers can provide. AI lacks the ability to make decisions based on empathy, interpret circumstances subjectively, or understand the professional responsibilities that guide legal practice. These human elements remain irreplaceable and essential to effective legal representation.
What AI can do is make lawyers more effective and efficient.
When properly implemented by skilled professionals, AI can automate routine tasks such as legal research, document review, and initial drafting, allowing attorneys to focus on complex strategic work that requires human judgment, ethical reasoning, and personal client relationships.
However, skilled implementation is key as recent court cases involving fabricated AI-generated citations underscore the critical importance of proper training, verification and human oversight.
For clients, responsible AI adoption translates to more efficient service delivery, reduced costs, and higher quality representation, as smaller firms can compete more effectively with larger ones by leveraging technology.
The legal profession is moving toward a future where firms that embrace AI responsibly will provide superior service at competitive rates, while those that resist this evolution risk falling behind.
Ultimately, AI represents not a threat to the legal profession but an opportunity to deliver better outcomes more efficiently, provided it’s implemented with the skill, oversight, and ethical standards that effective legal practice demands.
Read the entire article below, or online here on pages 32-35 and 45 of South Carolina Lawyer.
ADOPTING AI: IT’S NOT IF – IT’S HOW
by Doug Kim for South Carolina Lawyer Magazine, a publication of the South Carolina Bar.
Last year, Thomson Reuters released a report[1] stating that 82% of lawyers surveyed said AI can be applied to legal work, but only 51% said that it should. That leads to two questions. What can technically do and what are its risks and rewards? Second, how should lawyers use AI? Part 1 of this article addresses the first question. Part 2, which will appear in an upcoming issue of South Carolina Lawyer, provides my views on the latter question.
Circulating among the profession is the fear that AI will just replace lawyers entirely. This is simply not true. Medium and high complex legal tasks require nuanced understanding, interpretation, and application of the law to specific facts, which are skills that AI lacks. AI cannot make judgment calls based on ethical considerations, empathy, and subjective interpretations of circumstances; these human aspects of legal practice cannot be replicated. Further, AI cannot replace the personal connection that lawyers establish with their clients. Importantly, lawyers are bound by rules of professional responsibility, including confidentiality, competent representation, and client advocacy. AI lacks the ability to honor – or indeed even comprehend – these obligations.
If AI will not replace lawyers, then what good is it? AI is a technology that underlies the next generation of tools to be used in the legal profession. Like all tools, the education, experience, and skill of the user makes a dramatic impact on the effectiveness and quality of the work product created with the tool. For example, a professional musician would benefit greatly from the dramatically improved performance of a Jackson Soloist guitar as the Jackson provides better tone, performance, speed and overall playability. A novice would unlikely know the difference and the performance of the novice would not be materially improved.
According to one McKinsey report, skilled users can leverage AI to replace up to 30% of their work, leading to increased efficiency and productivity – the operative work being “skilled.” AI is not a substitute for education, experience or skill. While AI can accelerate education and skill development in the legal process by automating routine tasks and allowing legal professionals to focus on more complex and strategic aspects of their work, it is not a substitute. Without this requisite skill, the AI tool results in little benefit and can even provide a determent.
The real world provides examples of this risk. Just ask the lawyers that, despite clear judicial warnings and sanctions, continue to submit AI-generated court documents with fabricated (also called “hallucinatory”) content. For example, in Kohls v. Ellison, 2025 U.S. Dist. LEXIS 4928 * (D. Minn. Jan. 25, 2025), the expert witness admitted that his declaration inadvertently included citations to two non-existent academic articles, and incorrectly cited the authors of a third article. These errors apparently originated from use of GPT in drafting his declaration and the expert failed to verify these fake citations to academic articles before including them in his declaration.
Indeed, the problem has affected how judges take testimony. In In re Matter of Weber, 2024 NY Slip Op 24258 (N.Y. Surrogates Ct. Oct. 10, 2024), the trial court refused to accept as accurate without more back-up calculations performed by artificial intelligence. The court stated that due to the nature of the rapid evolution of artificial intelligence and its inherent reliability issues, before evidence which has been generated by an artificial intelligence product or system is introduced, counsel has an affirmative duty to disclose the use of artificial intelligence, and the evidence sought to be admitted should properly be subject to an admissibility hearing prior to its admission.
Properly used, AI tools can help lawyers automate manual processes and work more efficiently. For example, when using the AI tool for patent application drafting, more time should be spent at the beginning on the drawings of a patent application and generating a bullet point documents of key features of the invention’s structure and function that are novel and non-obvious (patentability requirements). This shift changes how patent lawyers invest their time, but they do it to more effectively use the AI tool.
Similarly, AI-powered case law research tools can help lawyers more easily find leading case law and guiding legal principles than old-fashioned Boolean searches, but only if lawyers can move away from that conceptual framework. Otherwise, a search term mentality fails to take best advantage of the tool.
Just as important – and unlike traditional computer-aided research – AI can suggest the best language to support arguments. Indeed, AI can also help lawyers quickly produce initial drafts of motions, legal briefs, contracts, and settlement agreements, which in the past have been time intensive. Improper use of AI, however, will cause the output to be either less useful or even counterproductive.
More generally, AI will change how legal services are provided. Routine tasks, such as legal research, document review, and billing can become automated, allowing lawyers to focus on more complex and strategic aspects of their work, especially those that require critical thinking based upon the facts and circumstances of the parties’ case and desired outcome. AI can assist in predicting case outcomes, advising clients, and developing informed strategies. All that requires, however, that lawyers re-order what they do and how they do it. If a lawyer traditionally spends 30% of her time in complex cases reviewing documents, it will require substantial willpower to pivot to a profoundly different allocation of time.
This will also impact the profession as a whole. While not replacing lawyers, AI will create a demand for lawyers with specialized skills in areas that require complex problem-solving, critical thinking, negotiation, and dispute resolution. Substantively, with AI fulfilling some of the more mundane tasks and day-to-day needs, the need for “specialized” areas (e.g., tax, securities, environmental, employment, intellectual property, complex litigation, and the like) will increase. But that also means that lawyers who have made a good living out of routine tasks will face an increasing challenge.
I experienced a movement years ago when I was a computer programmer prior to becoming a lawyer. The same positions were being put forward that AI was going to replace computer engineers. This did not happen. In computer science, AI, especially large language models like Chat-GPT, proved to be just another tool in the toolbox and made experienced programmers more efficient and accurate, enhanced code quality, reduced development costs, reduced time to market, improved quality control and generally made for a better work-product; especially experienced programmers. Properly implemented, AI will do the same for the legal profession. AI will not replace the lawyer.[2] However, attorneys that adopt AI will replace those that do not.
Further, the smaller law firm will become more competitive through leveraging technology just as we saw with online research, communications tools, timekeeping and billing, and practice and case management software. By automating certain tasks, smaller firms can take on more clients without needing additional resources and can maximize profitability while delivering improved legal services to clients. This levels the playing field and allows smaller firms to compete with the larger ones so that the dreaded overhead of the larger firm will become even more of a burden that results in higher fees and less value to the client.
This is not to say that the transition will not be bumpy. While adopting technology eventually reduces overhead and provides more value to clients, the legal profession has always faced challenges when it comes to innovation and technology. Further, most of the bar was licensed prior to the release of the iPhone.[3] This “slow to adopt” challenge stems from the reality of technical competence, or lack thereof, and the resistance to change which stems from being severely risk averse.
In 2017, the Association of Corporate Counsel published A Seat at the Head of the Table: From Lawyer To CEO? and stated, “Risk aversion. Most law firm cultures are built around a strong bias to risk aversion. However, … lawyers must expand their perception from ‘no’ to ‘yes,’ even if the next question is “how?”[4] While this publication was discussing lawyers transitioning to CEOs, it is applicable to the current discussion of whether to “use” AI. It is not a matter of yes or no, but rather when and how. While lawyers didn’t go to law school to be computer programmers, the technical requirements of modern legal practice cannot be ignored.[5] By analogy, the craftsman who used hand tools for many decades may be slow to adopt power tools for the same reasons that lawyers will be slow to adopt AI: habit, inertia, fear of change, inflexibility, etc. Yet history shows that those who adopted power tools surpassed those who did not in short order.
Disruptive technologies are just that – disruptive – and seeing the coming changes and being open to this disruption in the legal industry is critical. Disruption often comes without warning and is not anticipated by the masses. A quote often attributed to Henry Ford is, “If I had asked people what they wanted, they would have said faster horses.” Adapting to disruptive technologies is important to success and potentially the survival of the modern law firm.
AI is growing faster in its development than prior disruptive technologies. This creates both risks which are manageable and opportunities which will further the profession. These risks can be effectively managed with a few simple guiding principles:
- Understand how the AI works, including its training model and limitations.
- Implement AI to a specific application and avoid general, open AI tools.
- Make sure you are always in control of the technology and be accountable for its use (avoid the chatbot).
- Try to only use specific AI that has private, dedicated connections to large language models (as opposed to public data lakes like used by ChatGPT).
- Use AI tools that do not use your input to train with the AI engine and keep input confidential.
- Always have a live person review the content and work product.
The power of AI and the benefits that it can bring will create a separation in the legal profession, split into those that properly adopt AI and those that do not. The split will manifest in lawyers’ ability to deliver higher quality legal services and work product, the faster delivery of work product, and less costs; each of which impact referrals, reputation, and client satisfaction. Reuters reports that clients expect their lawyer to lead the charge in leveraging AI for the client’s benefit.[6] Clients will expect law firms to use AI due to the potential reduction in cost and time savings. The law firm that responds to these demands will have a significant advantage over those that do not. Adopting AI will also lead to changes in billing practices, and we will see more firms move to alternative fee arrangements such as a flat fee billing arrangement.[7]
Doug Kim
, a Physics major from Davidson College, began his professional career as a computer programmer and software engineer. His intellectual property career began in 1998 when he combined his business experience with his legal education and was involved with enforcing a client’s patent against multiple infringers. Since then, Doug has created a well-rounded IP practice that provides legal solutions and strategies tailored to each client from multinational corporations to start-ups.
[1] New report on ChatGPT & generative AI in law firms shows opportunities abound even as concerns persist, Thomson Reuters, April 17, 2023.
[2] In all fairness, we should see a reduction in the needs for support staff and junior associates. These roles typically involve administrative, repetitive tasks that AI can now perform with greater efficiency and cost effectiveness.
[3] The iPhone was first released June 29, 2007.
[4] A Seat at the Head of the Table: From Lawyer To CEO, by David Felicissimo, Association of Corporate Counsel, 2017.
[5] See CLE requirements in North Carolina for Lawyers, NC Continuing Legal Education (showing that lawyers in North Carolina must complete one hour of CLE in Technology every two years.) https://www.nccle.org/for-lawyers/requirements/renewing-lawyers/
[6] AI: the new legal powerhouse — why lawyers should befriend the machine to stay ahead by Jeremy Glaser and Sharzaad Borna, Thomson Reuters
[7] I appreciate the natural financial friction where the lawyer will pay for AI just to be able to charge less. However, while beyond the scope of this article, AI will have an impact on the adoption of alternative fee arrangements. I have been providing flat fee arrangements for decades and trust me, there is nothing to fear.
by Kim, Lahey & Killough Law FirmKey Business and Legal Trends in 2025
Navigating the Legal Landscape: Key Trends for Businesses in 2025
Kim, Lahey & Killough founding attorney Doug Kim joined Mike Switzer on South Carolina Public Radio’s South Carolina Business Review to discuss the new legal landscape for businesses in 2025. Key points include:
Disruptive Technology’s Impact
AI is rapidly reshaping business and the legal profession, presenting both opportunities and challenges. Unlike previous technological shifts, AI is accelerating change at an exponential rate, forcing businesses and law firms to adapt faster than before.
Key Implications for Businesses
-
Technology Adoption: Companies must be prepared to leverage new technologies quickly and strategically.
-
Increased M&A Activity: With substantial cash reserves and a pro-business climate, mergers and acquisitions are expected to increase.
-
Due Diligence Preparedness: Doug strongly advises businesses to begin due diligence preparations in anticipation of potential acquisitions.
In addition, the legal profession itself is experiencing significant disruption. AI tools are enhancing efficiency in research, particularly with regard to patent and trademark searches. Kim emphasizes that AI won’t replace lawyers, but lawyers and law firms that adopt AI technologies will likely outperform those that resist change.
In 2025, businesses must stay agile, embrace technology, and quickly manage the risks associated with new technologies and business models.
Listen to the full interview here or read the full transcript, below.
Full Transcript of The new legal landscape for businesses, an interview with Doug Kim on Mike Switzer’s South Carolina Business Review.
Broadcast on South Carolina Public Radio on January 23, 2025
[00:09.710] – Mike Switzer
Hello and welcome to the South Carolina Business Review. This is Mike Switzer.
As this New Year with a new administration in Washington just getting started, many businesses may be looking at the legal landscape and what they can expect to see in 2025. Doug Kim is an attorney in Greenville, South Carolina, where he joins us from now by phone to help us with this topic.
Doug, welcome to the program.
[00:39.990] – Doug Kim
How are you doing? Thanks for having me.
[00:41.620] – Mike Switzer
Great. Let’s just go ahead and kick off the discussion with an overview of what you see happening in the legal world this year.
[00:49.970] – Doug Kim
Well, it’s going to be quite a few fast changes, and I’ll give you my opinion of the analogies of why I think this is going to happen. And that is, Windows came out many years ago, and it made software accessible to the public in general, which was disruptive for society and business. 2007, the iPhone comes out and it creates software in your hand, again, disruptive for the benefit of increased technology – massive changes in business and society. What’s happening now is we have AI, which is even faster, that’s doing a couple of things. This is what’s driving changes in the legal side, I think. Ai has made everybody feel like, Oh, there’s this new technology. Gosh, we’re behind. We need to be stepping up. That’s one piece. Another piece is you’ve got a new administration who, by all accounts, seems to be reducing regulations and is going to be pro-business. Not that other administrations haven’t been, but this particular one seems to be more pro-business. Add on top of that, you’ve got a bunch of pent-up demand: during election years, businesses tend to, I don’t want to say stall, but they tend to not make much major decisions until they see what’s going on.
There’s a lot of money sitting on the guidelines to move projects forward. So, with all that said, you add the technology changes, the environmental changes, the geopolitical changes, and the fact there’s a lot of cash sitting out there, you’re going to watch the legal profession really have a lot of, quote, “pressures on it.” Our clients are going to be pressing us to be able to adopt technology and candidly, probably move faster than the legal profession is used to.
[02:22.290] – Mike Switzer
Okay. It sounds to me like a massive headache year for you.
[02:25.480] – Doug Kim
It could be based on the law firm’s attitude. It’s not uncommon for technology to change the law. For example, in one area of the law, the right to privacy. Well, everybody’s got a phone in their pocket now, and that phone has a camera. What is your expectation of privacy if everybody can video and photograph you now? So the way the law changed was because the technology changes. The law firms are just going to have to say, “All right, I need to understand this.” I need to step up and say, Here the deal is, as well as how these businesses are adopting it and say, “Okay, how do I manage the risk?”, which is a lot of what lawyers do with these new technologies and these new ways of doing business. And how do I keep myself up to speed so I can respond properly and competently to my client’s demands? I think when you say it could be a lot of headaches, it’s going to require lawyers to educate themselves in areas faster than maybe they’re accustomed.
[03:18.490] – Mike Switzer
Maybe giving up some of the bread and butter business that’s been the thing. In any way, you see a lot of consumers and businesses turning to alternative legal service providers like Legal Zoom.
[03:32.980] – Doug Kim
That’s exactly right. There is definitely a place for that. The legal services traditionally required a lawyer and a lawyer thinking to do some of this stuff. With the advent of some of these other businesses being in those areas, particularly with the leveraging of technology, it may not be a lawyer’s job, either 100% or maybe not even at all. I’ll give you a good example. The type of work that I principally do is intellectual property. We used to have to go hire people to do patent searches and trademark searches for us. Over the years, these patent and trademark databases have been developed by government agencies, Google patents, things like that. You can take the current technology with AI and do a patent or trademark search much more efficiently and faster than a human being could have done it years ago. Some of those tools that are out there are going to reduce, I don’t think eliminate…but reduce the need for some of the legal services that typically an attorney would do. Ai is not going to replace lawyers. It’s not going to do that. However, the law firms that adopt AI will probably replace the ones that don’t.
[04:35.080] – Mike Switzer
What is your recommendation for businesses that are listening right now then on what they should be doing to take advantage of these trends?
[04:41.730] – Doug Kim
If I had to say it in one sentence: Start thinking about getting ready for due diligence. You can Google due diligence and see what that takes. I mean, anybody can do that. If I’m right and there’s going to be an increased M&A activity and companies are going to be acquiring technology, not developing it, a company that wants to be a target for an acquisition would serve themselves well getting ready for this process.
[05:05.080] – Mike Switzer
All right, Doug. Great information. Thank you so much for spending time with us today.
[05:09.120] – Doug Kim
Happy to do it. Enjoyed it.
[05:10.870] – Mike Switzer
Doug Kim is an attorney. He joined us by phone from his office in Greenville, South Carolina. Remember, you can hear this show again at our web page, southcarolinapublicradio dot org. You can hear us again wherever you find podcasts with the South Carolina Business Review. This is Mike Switzer.
[05:33.700] – Announcer
The views expressed on the South Carolina Business Review do not necessarily reflect those of South Carolina Public Radio.
by Kim, Lahey & Killough Law FirmAlternative Legal Service Providers
Should They Be “Alternative?”
This article appeared the January 2024 issue of SC Lawyer magazine. Reprinted with permission of the South Carolina Bar.
For the past several years, the legal profession has been searching for ways to respond to staffing shortages, increased complexity in legal matters, and clients’ demand for cost control and faster response times. The use of Alternative Legal Service Providers (ALSPs) has been one way to meet these challenges. Failing to understand, explore and, when applicable, properly incorporate ALSPs into your legal practice will unnecessarily diminish the value you can provide to clients and companies. This is especially true when the ALSP leverages modern technology for document review and signature, e-discovery and analysis, litigation support, and regulatory and compliance projects. The introduction of artificial intelligence (AI) makes the decision to adopt or ignore ALSP even more timely and relevant to the modern law practice.
ALSPs can be very beneficial when properly implemented, as they provide non-traditional ways, even revolutionary ways, to provide legal services. There is also no question that the industry is growing. An online article by Thomson Reuters in January of 2023 stated that the ALSPs comprise a $20.6 billion portion of the legal market. The article noted that the rapidly increased use of ALSPs is causing a blurring between law firms, legal departments, and technology companies. The offerings for alternative legal services come in many forms: online legal platforms, virtual law firms, and artificial intelligence technologies that can be used for document review and even document drafting. As client demands increase, ALSPs can help firms and companies meet this demand by providing non-traditional and even disruptive solutions. We have all seen the change in the legal industry, especially post COVID, where digital transformation was increased, remote working became the norm, physical documents were the exception, and access to information dramatically increased. Proper use of alternative legal services can assist the law firm or company transition into the digital era.
One simple example is the shift to e-signature. While the algorithm that was generally used to create the first e-signatures was created in 1977, it was not until the Electronic Signatures in Global and National Commerce (ESIGN) Act of 2000 that these signatures were allowed to be legally binding and therefore an option for law firms. E-signatures are also consistent with the move to the paperless office. E-signatures offer fewer signing errors, improved security, increased response time, client convenience, and lower costs. However, adopting e-signatures comes with requirements such as having the client accept doing business electronically, allowing a wet signature option, showing a clear intent to sign, and receiving a copy of the completed, signed document. The point is that even with something as simple as e-signatures, there are practical, operational, and regulatory requirements that must be met to implement this alternative to the traditional signature. ALSPs cannot just be adopted blindly.
ALSPs can also be thought of as “legal outsourcing”, which is the practice of law firms or corporations engaging with third parties that provide legal support. Domestically, this is outsourcing and internationally it is offshoring. In the early 2000s, tasks that were assigned to these third parties included document review, legal research and writing, drafting of pleadings and briefs, and patent services. For example, companies offered to draft patent applications for substantially less than the domestic attorney fees by using offshored authors. These third parties offered substantially reduced costs, improved turnaround and increased resources to those law firms and companies that sought their services. However, this practice was not without risk.
In 2008, the United States Patent and Trademark Office (USPTO) recognized that this offshoring was occurring and issued a notice which stated, “The USPTO has become aware that a number of law firms or service provider companies located in foreign countries are sending solicitations to U.S. registered patent practitioners offering their services in connection with the preparation of patent applications to be filed in the United States.” The USPTO “reminded” inventors and patent attorneys that “the export of subject matter abroad pursuant to a license from the USPTO, such as a foreign filing license, is limited to purposes related to the filing of foreign patent applications. Applicants who are considering exporting subject matter abroad for the preparation of patent applications to be filed in the United States should contact the Bureau of Industry and Security (BIS) at the Department of Commerce for the appropriate clearances.” The risk was that using these ALSPs may cause a violation of the Export Administration Regulations governing exports of dual-use commodities, software, and technology, including technical data.
The lesson here is that while there can be substantial cost savings with an ALSP, a strategy should be put in place to properly manage the ALSP, project, information, data, and regulations.
One lesson can be learned from a now infamous proceeding before the USPTO involving ALSPs Abtach Ltd., 360 Digital Marketing LLC, and RetroCube LLC. These ALSPs purported to assist trademark filers with the federal trademark application process. On November 3, 2021, the USPTO issued a show cause order stating that it had reason to believe that these and related companies were violating the USPTO’s rules of practice, engaging in the unauthorized practice of law, and providing false, fictitious, or fraudulent information in thousands of trademark submissions to the USPTO. Among the violations, the USPTO alleged that the companies failed to follow the rule that all documents submitted to the USPTO in a trademark matter must be personally signed by the named signatory. When the companies did not adequately respond to the USPTO’s show cause order, the USPTO imposed sanctions on the companies, including a bar on further communication with the USPTO, permanent deactivation of their USPTO accounts, and disallowance of any future accounts. However, this was not the worst of it. The order terminated “all trademark application proceedings involving submissions by Respondents or filed through a USPTO.gov account registered to, associated with, or controlled by Respondents,” leaving thousands of applicants with paid for, but cancelled trademark applications. Several South Carolina applicants were caught in this proceeding. Since federal trademark rights can begin from the filing date, this caused substantial legal damages to thousands of entities. In this case, the use of these ALSPs resulted in substantially more harm than any saving could overcome. The use of an ALSP without the guidance of a practicing trademark attorney was very damaging indeed.
When considering an ALSP, there is always the issue of unauthorized practice of law, as shown in the USPTO proceeding. South Carolina has addressed one business model of an ALSP (Legal Zoom) in a 2012 proceeding and found that “Legal Zoom’s business practices, as reflected in the Settlement Agreement and the Affidavit of Edward Hartman, do not constitute the practice of law.” Nevertheless, each use and implementation is different, and this is an area where the specific ALSP in use will determine the outcome.
Practical and ethical considerations require lawyers and firms to properly investigate and implement ALSPs consistent with the profession’s ethical obligations. Comment 8 to Rule 1.1 of the Rules of Professional Conduct states that a lawyer, to comply with the requirement of competency, should “keep abreast of changes in the law and its practice, including a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client.” Rule 1.4 requires transparent communication so clients can make informed decisions regarding representation. Rule 1.6(a) states, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation….” Rule 1.6(c) states, “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” When using an ALSP, even for normal tasks such as document review, e-discovery and data rooms, the law firm has several obligations under the application of Rules 1.1, 1.4 and 1.6. Consider an ALSP that provides e-discovery and document review. First, the lawyer has an obligation to understand the services and operations of the ALSP in sufficient detail to ensure that any information shared remains confidential (Rules 1.1 and 1.6). Second, the lawyer has an obligation to communicate and inform the client that the ALSP is being used and what information is being shared (Rule 1.4). Third, the lawyer has an obligation to stay abreast of the changes in services and operations of the ALSP in the event circumstance’s change. For example, SLPA that are technology-based companies can be subject to mergers, acquisitions, and reorganizations that can impact the ALSP operations. On August 29, 2023, the “legal technology” company Reveal published a press release stating that it acquired two other e-discovery companies, Logikcull and IPRO. Reveal provides the legal industry with tools for document review and other services. The acquisition resulted in over 4,000 customers and employees in more than two dozen countries. Logikcull, initially a United States company, now has its span globally. In the event that a law firm or client used Logikcull for a legal hold, extra steps now have to be taken to be compliant with the International Traffic in Arms Regulations (ITAR), because ITAR covered technical information cannot be transmitted without certain permissions and only to certain counties. Failing to understand the services and operations of the ALSPs of this transaction can result in not only ethical violations, but regulatory ones as well. The example of violating ITAR is the risk that the Rules of Professional Conduct are designed to prevent.
The use of technology, and investigating ALSPs, is not complete without a discussion of artificial intelligence. The risks associated with use of AI can create significant negative impacts on the client so that its use falls under this rule.
First, when we discuss AI, we should classify the type of AI that is being used. Generally, there are three types: analytical, predictive, and generative.
Analytical AI is generally directed to analyzing and interpreting data to provide insights, patterns, and meaningful information. An ALSP using analytical AI may be the easiest to implement since it can streamline document review, reduce errors, and improve efficiency. This is especially true when using AI to scan documents for key terms and flag issues for an attorney to review. Understanding the ALSP using analytical AI (and informing the client) can quickly lead to savings and improved accuracy.
Predictive AI seeks to forecast or predict future events or outcomes based on historical data and patterns. This use may be the riskiest for some firms because of the presence of bias in the very AI model itself, the large quantity of data required, the uncertainty of specific outcomes and assumptions made in the learning model about the subject matter. For example, one AI application, when presented with a potential juror name, searches public data related to the prospective juror, correlates the data with known patterns of human behavior, and provides a detailed profile of the person’s personality type and a summary of their views and biases. This application seeks to provide insight into the juror according to its AI model so that attorneys can use this information to predict biases in a potential juror. However, since AI has to be “taught” how to think, the AI may only be providing an appearance of usefulness, include bias and discrimination concerns, and even may violate the constitutional mandate not to use gender or race when selecting juries. Since the actual operation of the AI model is constantly changing and unknown, there is substantial risk with AI for this predictive application.
Nevertheless, using an ALSP with predictive AI that analyzes data to predict case outcomes and legal trends, combined with a lawyer’s oversight, can be a powerful tool. Using such an ALSP with predictive AI can allow a lawyer to make informed predictions about case success, analyze settlement offers, and develop mediation, settlement, and litigation strategies. Predictive AI can be used to review case facts, prior rulings, and judge behavior, potentially allowing the lawyer to better prepare strategic decisions concerning trial tactics, negotiations, or settlements. Predictive AI has the potential to enhance or even replace the mock jury process. It is important to be aware and understand that every model, technique, and process has its limitations when implementing it.
Generative AI is used to create new content, documents or other material and typically provides newly created content according to patterns and knowledge learned from existing data. Its use can include anything from litigation documents to emails. Again, understanding the process and communicating that it is being used to the client when deploying generative AI is critical to its proper implementation. For example, in patent law, a public disclosure can start a clock running in which the inventor has to file a patent application within twelve months or risk losing the ability to seek patent protection. ChatGPT is a public forum, so using this ALSP to draft a patent application would result in a public disclosure.
Even AI models that claim to keep confidential the information that is provided (e.g., seeking to avoid public disclosure) have issues with their operations. For example, patent drafting AI software states on its website that data is sent to Amazon Web Services (AWS), is encrypted, and the patent documents are not stored except as necessary to provide the services. While this is a good first step, the privacy policy states that the company may share the information collected from you with third-party companies, such as Amazon Web Services, Google, and LinkedIn. One has to wonder how the data remains confidential with these contradictory representations. Understanding these processes and policies is important to being able to communicate to a client when such a service is used.
We also know that there have been missteps with the use of generative AI, including the now well-known fine of $5,000.00 assessed against a lawyer who used ChatGPT to write an affidavit and brief, including six case cites that proved to be nonexistent cases. While it may appear that this is a gross dereliction of duty, the attorney explained that he was unaware that ChatGPT could provide false information (e.g., hallucinations). It is difficult to reconcile this explanation with the requirements of Rule 1.1, comment [8].
When using generative AI for a client, a detailed understanding of the ALSP policies and process is critical to ensure that confidentiality is maintained.
When selecting an ALSP and implementing it in your practice, there are several key points that are needed:
- Understanding how the ALSP receives, stores, and otherwise manages the data it receives. For example, is the data stored in one location, multiple locations domestically, and/or internationally? Further, the vendors of your vendor can play a role. In one example, a vender was used for data storage and analysis for material that was ITAR controlled. However, a vendor of a vendor was not ITAR compliant creating ethical and regulatory issues.
- Understanding the ALSP’s policies such as its security policies, disclosure policies, and ability to return or destroy data is important both in operation (and what) as they provide informed consent to the client.
- Obtaining informed consent from the client can be a requirement in some, if not most, cases. As we see ALSPs continue to invest in technology, the lawyer can capitalize on these new technologies and tools, but not necessarily without the client’s permission.
- Ensuring confidentiality.
- Providing oversight so that the lawyer does not blindly rely upon the ALSP since the duty of communications, competence, and confidentiality cannot be delegated. We learned this from the case J-M Mfg. Co. v. McDermott Will & Emery where the client instigated a legal malpractice claim alleging the negligent handling of e-discovery. The client pled that its counsel’s professional duty of care was breached when its counsel failed to supervise its e-discovery vendors and contract lawyers which resulted in the inadvertent production of thousands of non-responsive, privileged documents.
Properly implemented, ALSPs can be used effectively for the benefit of the lawyer and the client, but not without investigations, precautions, and oversight. Unfortunately, there is not a single checklist for this as each ALSP has unique and ever-changing procedures, policies, and processes, especially with the introduction of AI. Nevertheless, cost savings, efficiency, speed, large data access and analysis, and future predictive services can provide the law firm with a competitive advantage without requiring the traditional “team of lawyers.” Planned, controlled and thoughtful implementation of ALSPs is the way of the future. As discovered in the Alternative Legal Services Providers 2023 Report, ALSP use is growing in large part to the ability of the ALSP to provide specialized expertise (e.g., intellectual property portfolio management) and access to technology that is not available within the firm (e.g., artificial intelligence).
Also, AI is not without its entertainment…
Doug: Please write a closing paragraph for an article discussing alternative legal service providers
ChatGPT: In an era marked by rapidly evolving legal demands and the imperative to optimize resources, alternative legal service providers have unquestionably earned their place in the legal landscape. Their innovative approaches, cost-effectiveness, and commitment to efficiency are reshaping the way legal services are delivered and consumed. As clients and law firms alike continue to seek innovative solutions, the rise of ALSPs stands as a testament to the legal industry’s adaptability and responsiveness to change. While traditional law firms remain a cornerstone of the profession, the symbiotic relationship between traditional and alternative legal service providers is fostering a legal ecosystem that not only meets but anticipates the diverse needs of clients in our increasingly complex and dynamic world. The future of the legal industry appears to be one where the combined strengths of both models will continue to drive progress, making legal services more accessible, efficient, and effective for all.
Doug: Now, write it in the voice of a pirate.
ChatGPT: Arrr, me hearties, in this ever-changin’ legal seascape, these here alternative legal service providers be a treasure worth discoverin’! Their swashbucklin’ methods, savvy for savin’ doubloons, and their knack for speedin’ through legal waters be transformin’ the way we handle our legal affairs. As clients and law firms seek new horizons, these ALSPs be showin’ their mettle, provin’ they be a vital part o’ the legal crew. While traditional law firms be anchorin’ the profession, the partnership ‘twixt old salts and these newfangled ALSPs be creatin’ a legal realm that not only meets but anticipates the diverse needs o’ clients in this ever-twistin’ and turnin’ world. The future of the legal sea be one where both models be workin’ in tandem to chart a course towards makin’ legal services more accessible, efficient, and effective for all ye landlubbers!
Doug Kim, a Physics major from Davidson College, began his professional career as a computer programmer and software engineer. His intellectual property career began in 1998 when he combined his business experience with his legal education and was involved with enforcing a client’s patent against multiple infringers. Since then, Doug has created a well-rounded IP practice that provides legal solutions and strategies tailored to each client from multinational corporations to start-ups.
Endnotes
- https://www.thomsonreuters.com/en-us/posts/legal/alsp-report-2023/ (according to the Alternative Legal Services Providers 2023 Report, published in 2023 and conducted June 1 to July
18, 2022 by the Thomson Reuters Institute, the Center on Ethics and the Legal Profession at Georgetown Law, and the Saïd Business School at the University of Oxford. - 73 CFR 42781
- Id.
- Id (See MPEP § 140 (8th ed., Rev. 5, Aug. 2006).
- 15 CFR Parts 730–774.
- https://www.uspto.gov/trademarks/protect/applications-terminated-abtach-360-digital-marketing-retrocube
- 37 C.F.R. § 2.193(a); TMEP § 611.01(b).
- https://www.uspto.gov/trademarks/protect/applications-terminated-abtach-360-digital-marketing-retrocube
- Case No. 2012-208067.
- Id.
- Rule 1.1 Comment [8].
- Rule 1.4 Comment[5].