Legal Ease Blog

Recent ABA Opinion Discusses Use of AI

AI (artificial intelligence) is inescapable these days, including in the legal profession. Like it or not, lawyers need to learn about AI and its various uses and advantages (and drawbacks), both for their own practices and to be informed for clients.

The ABA recently (July 29, 2024) released an ethics opinion, Formal Opinion 512, which discusses lawyers' use of generative AI tools. Generative AI tools create new content, including text, images, audio, and video, based on a "prompt" given by the user and generated through data the AI has been trained on.

By now, most of us are familiar with the cases where lawyers got in hot water for citing non-existent cases in court papers that were drafted using AI tools. The opinion addresses the obligation to refrain from making false statements or misrepresentations to the court (noting that some courts now require lawyers to disclose their use of gen AI tools), but also looks at lawyers' use of  generative AI tools in the context of several other ethical obligations, including:

• competence (ABA Model Rule 1.1)
• confidentiality (ABA Model Rule 1.6)
• communication (Model Rule 1.4)
• reasonableness of fees (Model Rule 1.5).

Lawyers Have a Duty to Understand Capabilities and Limitations of Gen AI

As to competence, the opinion notes,

"To competently use a GAI tool in a client representation, lawyers need not become GAI experts. Rather, lawyers must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use. This means that lawyers should either acquire a reasonable understanding of the benefits and risks of the GAI tools that they employ in their practices or draw on the expertise of others who can provide guidance about the relevant GAI tool’s capabilities and limitations."

Recognizing that changes in technology, and particularly AI, will continue, the opinion also makes it a point to say that lawyers' obligations with respect to competency and having a reasonable understanding of the technology is an ongoing one.

Part of competence is also recognizing the risks of using generative AI technology, including the risk of "hallucinations" or of poor outputs based on inaccurate, incomplete, or otherwise substandard data sets that the AI tool has been trained on. As a result of these risks, lawyers are required to independently review and verify any output generated by these tools, but the level of verification may depend on the tool, the lawyer’s experience with that tool, and the specific task being performed:

“…a lawyer’s use of a GAI tool designed specifically for the practice of law or to perform a discrete legal task, such as generating ideas, may require less independent verification or review, particularly where a lawyer’s prior experience with the GAI tool provides a reasonable basis for relying on its results.”

Lawyers Must Safeguard Client Confidentiality When Using Gen AI

The duty of confidentiality is one of the main cornerstones of legal representation. In addition to Model Rule 1.6, covering the duty owed to current clients, Model Rules 1.9(c) and 1.18(b) require lawyers to protect the confidential information received from former and prospective clients as well.

When using generative AI tools, lawyers must consider whether the information they provide to that AI tool may be disclosed or accessed by third parties or by anyone who may not properly safeguard that information. This can occur when the client information that is input into the tool is used to “train” the AI and is later used to generate an output by the tool in another matter.

According to the opinion, not only is this a danger when using a generative AI tool that is also used by others outside of the firm, but it is also a danger within firms where some individuals within the firm may be prohibited from accessing specific client information, or where confidential information from one client may be used to provide an output for a client in another case, inadvertently revealing client information.

Lawyers May Have a Duty to Disclose Use of Gen AI to Clients

As a result of the potential risks outlined above, according to the opinion, lawyers using such a generative AI tool are required to obtain the client’s informed consent before using the AI tool on that client’s behalf, and that informed consent must provide information to the client about the potential risks, the kinds of information that might be disclosed, as well as the potential benefits of using the AI tool.

Lawyers are generally not obligated to disclose the use of gen AI tools where the lawyer will not be inputting client information into the AI tool, although there are circumstances under which disclosure may still be required. For example, if the client asks or expressly requires to be informed whether these tools are being used, or if the gen AI tool is being used to influence a major decision in the representation, the lawyer is required to disclose their use.

Billing for Tasks Using Gen AI

Model Rule 1.5 mandates that a lawyer’s fees must be “reasonable,” and sets forth a number of criteria for determining reasonableness. When lawyers bill by the hour, they are required to bill only for the time actually spent on the client’s matter.

Gen AI tools can analyze large amounts of information much more quickly than human beings can. As a result, these tools can save lawyers a lot of time. If lawyers using gen AI tools are billing by the hour, they may only bill for the time it took to complete the task, even if the same task would have generated more billing if a human being performed it. Of course, by using the gen AI tool and completing the work faster, the lawyer has an opportunity to use that additional time to work on other matters for different clients or perform other tasks for the same client, so any “loss” of billable time should be made up.

According to the opinion, even where a lawyer is not billing by the hour, the lawyer may be required to bill less for tasks completed using gen AI tools. “For example, if using a GAI tool enables a lawyer to complete tasks much more quickly than without the tool, it may be unreasonable under Rule 1.5 for the lawyer to charge the same flat fee when using the GAI tool as when not using it. “A fee charged for which little or no work was performed is an unreasonable fee.” (citing Att’y Grievance Comm’n v. Monfried, 794 A.2d 92, 103, a 2002 case from Maryland where a lawyer was found to have violated Rule 1.5 by charging a $1,000 flat fee when the lawyer “did little or no work”).

The opinion goes on to caution lawyers that they may not charge clients for their time spent learning about gen AI tools or how to use them, if that service is one they will use regularly for their clients, but if the client requests the use of a specific gen AI tool, “it may be appropriate for the lawyer to bill the client to gain the knowledge to use the tool effectively.” But in that case, the lawyer should come to an agreement with the client about how the client will be charged for gaining that knowledge, and to memorialize that agreement in writing.

Finally, the opinion also addresses the ethical duties lawyers have to supervise those who work for them, whether those individuals work within the firm or outside of it, and this ethical obligation also includes the use of gen AI tools by those individuals.

You can read the full opinion here.

On Balance Podcast on Productivity

I was privileged to join my How to Do More in Less Time: The Complete Guide to Increasing Your Productivity and Improving Your Bottom Line co-author Daniel J. Siegel on the On Balance Podcast for the State Bar of Michigan.

You can listen to the complete episode here. Make sure you listen soon, because there's a limited-time 20% discount available just for listeners!

We talked about:

• How the book came about
• What the biggest productivity challenges are that face lawyers today
• How to conduct effective virtual meetings
• How lawyers can deal with the changing tech landscape while maximizing the technology they already have
• How new technologies, including AI, will affect lawyers and their productivity and
• Some of our favorite tips from the book.

💡Want more tips? Subscribe to my newsletter. 🎥Or check out my YouTube productivity playlist.

Preparing for Equity Partnership

My latest column in Law Practice Magazine (July/August Big Ideas Issue) is all about preparing for partnership. If you aspire to law firm equity partnership, the article includes some things to think about in several different areas.

Here are some highlights:

Mindset

As an associate, your focus is on yourself - your work and your own clients. But as an equity partner, you become responsible for the whole firm and everyone in it. You are no longer responsible just to your clients, but to all of the firm's clients.

You have to take a broader view of the business and your day-to-day work than you would as an associate. 

Business Development

As an equity partner, your role within the firm is very different than your role as an associate, or even as a non-equity partner.

When you are an equity partner, as an owner of the firm, your main responsibility is to ensure that the firm continues to generate enough revenue to continue operating. As a result, one of the expectations of law firm partners is that they drive business to the firm—and you’ll have to generate enough business not only to keep you busy but to provide work for others.

Management Responsibilities

Part of your responsibility as an equity partner is the management of the firm. That means your workload is likely to grow to include things like  administrative and nonbillable tasks, such as supervising associates, conducting performance reviews, hiring and firing, reviewing client bills and strategic planning. You will have to learn to be an excellent delegator.

 As a leader of the firm, it is your job to help uplift, inspire and foster the growth of the firm’s employees. 

Financial Considerations

Perhaps the biggest change when moving from associate or non-equity partner to equity partnership is in the area of finances. As an equity partner, you will be directly responsible for the firm’s financial health. You will need to understand how the firm works and understand its financial picture so that you can make informed business and financial decisions.

In addition, your compensation structure will change dramatically. Instead of reaceiving a guaranteed salary, your compensation will be tied to the success of the firm. In some years, that may even mean that you make less money than you were making as a senior associate or a nonequity partner. 

In addition to a less predictable income, as an equity partner, but you may have to wait longer to get paid. You may not receive distributions frequently, which may mean waiting for a large portion of your compensation until the end of the quarter or even the end of the year. 

Are you ready for the changes equity partnership may bring?

ABA members (and those who haven't reached their article limit) can read the column here.

Inspiring Business Podcast with Mark Bullock

It's been quite some time since I posted here since most of my content is being posed on the Lawyer Meltdown website, but I wanted to share this Inspiring Business podcast episode where I was interviewed by Mark Bullock, one of the founders of Videosocials. 

We had a great conversation talking about productivity, marketing, technology, whether we consider ourselves "starters" or "finishers" and more.

We also chatted about Mark's business, Videosocials. I've been a Videosocials member for several years now, and I think it's one of the best things I've done for my business. I encourage everyone to check it out - and let them know I sent you! You can learn about Videosocials here.

We also talked about the brand-new second edition of How to Do More in Less Time, The Complete Guide to Improving Your Productivity and Increasing Your Bottom Line, co-authored with Daniel J. Siegel.

Subscribe to the Inspiring Business Podcast:

https://podcasts.apple.com/us/podcast/an-introduction-to-inspiring-business-video/id1614686586?i=1000554235472

Subscribe to Inspiring Business Video Series:

https://www.youtube.com/c/MarkBullockpB

Time Management Tip #5: Create a "Don't Do" List

If you’re one of those people with a never-ending to-do list, this tip is for you.

No matter how hard you try to list what you need to accomplish, instead of getting shorter, your list gets longer – new things crop up, unanticipated client problems arise, or a last minute emergency that “must” be handled today gets in the way. It’s frustrating, exhausting and ultimately, completely unproductive.

The answer may be a ‘don’t do’ list.

What’s a ‘don’t do’ list? It’s a list of the things you shouldn't be doing, tasks that could be delegated to someone else or outsourced, and all of the items that can be eliminated entirely (or eliminated for a specified time period).

Law school education trains lawyers to spot issues, but this issue spotting behavior isn’t the most efficient way to run a law practice. Issue spotting can lead to “analysis paralysis” by creating the feeling that every issue must be at least considered, if not addressed. This creates additional distractions.

Narrow Your Options

The ‘don’t do’ list counteracts this by narrowing your options so that you’re not overwhelmed by so many choices every time something new arises.

Having a ‘don’t do’ list lets you identify tasks you don’t want to do or that you shouldn’t be doing because they distract you and prevent you from accomplishing more important tasks; if it’s already on the ‘don’t do’ list, it’s easy to immediately recognize it and move on to more productive endeavors.

Make Your Own Don't Do List

How do you decide what goes on the ‘don’t do’ list? Anything that distracts you from the main goals that you want to accomplish belongs on the list. The ‘don’t do’ list can include day to day activities, specific types of clients or matters or behaviors that don’t serve you.

Think about your strengths and weaknesses when making your ‘don’t do’ list. Are you a great speaker but a poor writer? Maybe writing articles, motions, briefs, etc. should go on your ‘don’t do’ list. You can use a ghostwriter, hire a contract lawyer to do the writing for you, or give the task to someone else in the firm with excellent writing skills. Then you can focus your energies on trying cases, giving seminars or presentations, or other activities where you can showcase your speaking skills.

Which marketing activities belong on your ‘don’t do’ list? Marketing and practice building are very high value activities, but they’re only valuable if they are strategic - if they’re putting you in front of potential clients or leads, or if the groups or events are ones which you’re passionate about.

Prioritize: evaluate which groups or activities will be the most beneficial to you (or to the people or causes you’re supporting). Limit your participation to the most valuable events or organizations. You can get more value for less time, energy and stress. If the things already on the ‘to do’ list are more important or more valuable, these ‘invitations’ belong on the ‘don’t do’ list.

Although you need to be responsive and accessible to your clients and colleagues, a good ‘don’t do’ list might include particular days or times when you’re ‘off limits.’ Allowing constant interruptions of family or leisure time not only robs you of much-needed recharging and rest, but is a disservice to clients who are only getting part of your attention. The same goes for interruptions of important business or client-related activities. It’s rare that clients have a real emergency that can’t wait an hour or two for you to finish preparing your motion in limine or complete a meal with your family (and don’t try to do both at once – remember Tip #3: Give Up Multi-Tasking).

Practice areas can also be items to add to your ‘don’t do’ list; sometimes turning down work is the best decision you can make. If you aren’t well-versed in the particular area of the law, don’t have the time or resources to learn or don’t have someone to help you, you may be asking for more trouble than the case is worth.

Identifying the ‘don’t dos’ can be an effective tool for managing your time and reducing your stress. Knowing in advance what things you won’t do lets you move on quickly, without wasting additional time analyzing everything that comes to your attention.

The ‘don’t do’ list also reminds you to ask for help in the areas that aren’t your strengths, so you can focus our efforts on what you do best and what brings the most value to your clients and to your life. It allows you to let go of the idea that you can do everything and be everything to everyone. It’s a shorthand way of cutting through all of the clutter of what needs to be done so you can get back to providing great service to your clients.

Check out my other time management tips: 

Time Management Tip #1: Don't Try to Manage Time; Manage Your Activities

Time Management Tip #2: Get Everything Out of Your Head

Time Management Tip #3: Give Up Multi-Tasking

Time Management Tip #4: Prioritize

Time Management Tip #6: Use the Power of Three

Time Management Tip #7: Next Actions

Time Management Tip #8: Cure "I Need to See It" Syndrome

Time Management Tip #9: Do the Worst First

Time Management Tip #11: Create External Deadlines

Time Management Tip #12: The Two-Minute Rule

Time Management Tip #13: Schedule Time to Complete Work

Time Management Tip #14: Create a Daily Plan and Weekly Review

Time Management Tip #15: Eliminate Bad Clients

(This post was originally published on August 23, 2012 and was updated in January 2022. Versions of this post previously appeared on this blog, in Sue magazine, and in Law Practice Today).

How Are Lawyers Using Technology? ABA TechReport 2021

Every year, the ABA and the Legal Technology Resource Center conduct a legal technology survey seeking information from law firms of all sizes about how they use technology for everything from cybersecurity to cloud computing services to marketing and more.

Members of the Legal Technology Resource Center Board and other ABA members then analyze some of the information gleaned from the survey and the resulting ABA Legal Technology Survey Report and write articles covering their findings. These articles are known as TechReports.

The 2021 Technology Survey Report Covered the following areas:

1. Online Research
2. Technology Basics and Security
3. Law Office Technology
4. Marketing and Communication Technology
5. Litigation Technology and E-discovery

All of the 2021 TechReports have now been released and are available to the public. They can be found as listed below:

1. Cloud Computing, by Dennis Kennedy
2. Practice Management, by Alexander Paykin
3. Budgeting and Planning, by Julie Bays
4. Websites and Marketing, by Allison C. Johs (yours truly)
5. Technology Training, by Sofia Lingos
6. Solo and Small Firm, by Reid F. Trautz
7. Cybersecurity, by David G. Reis
8. Life and Practice, by Alan Klevan

Use of Technology to Market Your Practice and Communicate with Clients

As noted above, I took on the task of reviewing the survey report related to websites and marketing once again this year, but my focus this year was on client communication - using technology to communicate with potential clients (marketing) and to keep current clients informed.

With respect to current clients, only 31% of survey respondents say they communicate with clients through their website or another online service (other than email). As I discuss in the article, I think this is a missed opportunity, especially since client portals make communicating with clients efficient and keeps client communications in one place (not to mention, often more secure than the way lawyers and clients are currently using email).

Similarly, lawyers miss an opportunity to streamline their billing and collections process by not taking advantage of current technology: "Most clients are used to paying for everything from groceries to medical services online, yet only 31% of respondents’ firms offer the ability for clients to pay online or through their website for their legal services."

In terms of marketing, lawyers seem to have recognized that having a website for their law firm is important - 94% of respondents in 2021 said their firm has a website. But, as my article indicates, "law firm websites still largely appear to be used as tools for one-way communication, rather than offering the firm’s audience easy ways to communicate with the firm through the site."

Video is another under-utilized communication tool among lawyers. " Only 28% of respondents’ firms use video for marketing overall, including only 19% of lawyers from firms of 2-9 lawyers, 18% of lawyers from firms of 10-49 lawyers, and only 10% of solos."

For more information and insights into how lawyers are using technology as a communication tool both on and off of their websites, with both potentail and existing clients, read the full TechReport here.

TechReport 2021 Highlights

Click on the links for any of the reports listed above to see the full report and analysis of the data and compare the results and the recommendations in each of these articles against what your firm is currently doing. Here are a few interesting notes from this year's other TechReports:

• Laptops have passed desktops for the first time this year as the primary device of choice for attorneys to accomplish their work (Practice Management).
• Although attorneys overall seem satisfied with the software tools they're using, the number of lawyers using these programs is low as compared to the number who have access to them (Practice Management).
•  Only 43% of solo and 50% of small firms responding indicated that they budget for technology (Budgeting and Planning). 
• Only 35% of solo respondents and 56% of firms of 2-9 attorneys report having technology training available at their firms (Solo & Small Firm)
• 74% of respondents said that they were involved in the selection process for the technologies employed at their firm (down from 81% in 2020). (Technology Training)
• When identifying technology solutions for their firms, 88% of respondents reported that they sought information from their colleagues, and 35% of those found peer input to be “very influential. (Technology Training)
• Only 59% of respondents stated that they felt “very comfortable” using the firms existing technology (Technology Training).
• Current cloud users cited “confidentiality/security concerns” (61%), lack of control over data (43%), losing control over updates (27%) and vendor longevity (23%) as concerns about use of the cloud. (Cloud Computing)
• Only 35% of survey respondents employed secure socket layers (SSL) as a security measure (Cloud Computing).
• 36%  of survey respondents report having an incident response plan for a security breach (Cybersecurity). 
• Solo and small firms plan to spend only 10-11% of their technology budget on security compared to 20-36% of the larger firms with 100+ attorneys (Budgeting and Planning).
• Almost 50% of the respondents who worked in a traditional office space leased/owned exclusively by the law firm did not return to that setting, but 64% of respondents said they did not telecommute (Life and Practice).
• Overall, 64% of respondents report that they telecommute compared with 55% in 2019, but this response is skewed toward larger firms. In firms with 2-9 lawyers, only 50% reported they telecommuted, and 53% of solos telecommute regularly (Solo & Small Firm).
• Of the 64% who telecommute, 39% did so full-time in 2021 compared to only 6% in 2019 (Solo and Small Firm).
• 14% of respondents would stick with changes to the way they practice as a result of the COVID-19 pandemic, and 74% would implement a combination of their “old ways” and “new changes (Life and Practice).

 

Tools to Create Infographics Easily

In 2013, I wrote a post on Slaw.ca on Infographics for Lawyers. In that post, I said,

 Infographics are visually appealing, highly shareable and, when done right, can convey a lot of information quickly and easily, or make a mountain of data easy to understand. By combining text and visuals into one, infographics make the most of both to reinforce a message.

I also noted in that post that lawyers can use infographics in a number of ways, including:

• to help train employees
• to enhance firm newsletters
• as a recruitment tool,
• as an alternate or additional lawyer biography
• to provide statistical firm information on the law firm website
• showcase the results the firm has attained for clients

Infographics can be used for other purposes, too, including to help explain complicated processes or court procedures to clients, or to illustrate information for a jury during a trial. You can probably think of even more ways to use infographics in your practice.

If you want to try your hand at creating some infographics for your law firm, there are some excellent (and inexpensive) tools that you can use to make them quickly and easily. Here are a few to try:

Venngage Chart Maker This is a free platform that offers several different templates that you can use to create charts and infographics easily. You choose your template, import your data and add icons or illustrations from their library, and brand it with your logo and colors using their Brand Kit tool. Venngage also has paid subscription plans that provide more options, such as additional designs, more uploads, and other premium services.

Canva is another popular tool for creating infographics. Like Venngage, Canva has templates for you to work from, with images, icons, and illustrations to add visual interest. You can also purchase premium images for a few dollars each, and you can brand your designs. Canva also has Pro and Enterprise plans that offer the ability to brand your images includes premium photos, videos, and illustrations, create your own templates, and more.

You can see an example of an infographic I made using Canva below (click on the image for the full-sized version):

If you don't want to learn how to use a new tool and you're already familiar with PowerPoint, you can try creating an infographic in PowerPoint. Here are two resources for doing so:

How to Make Infographics with PowerPoint: A Beginner's Guide, from Graphic Mama

How to Make Infographics with PowerPoint, from Copypress

 

 

Making Happy Lawyers in 2021

We're only a few hours from 2021. Most of us are more than happy to say goodbye to 2020, even knowing that restrictions related to the COVID-19 pandemic are likely to continue for a while. But there is some good news on the horizon with the rollout of two (so far) vaccines.

After the year we had in 2020, many of us are re-thinking everything from our regular activities, to our homes, our lifestyles, and our practices.

Here's a fun infographic from Juris Office that might provide some insight on what changes you can make in 2021 to increase your satisfaction as a lawyer:

What makes YOU happy as a lawyer? Tell me in the comments!

NEW - LinkedIn Essentials Online Course

I am excited to announce that after many years of teaching and training and writing about LinkedIn, Dennis Kennedy (my co-author on Make LinkedIn Work for You, A Practical Handbook for Lawyers and other Legal Professionals) and I have officially launched our online course - LinkedIn Essentials.

This course will take you step-by-step through the three main building blocks of LinkedIn - Profiles, Connections, and Participation - and show you easy ways for you to improve your LinkedIn presence and maximize your use of the platform.

But perhaps the most useful part of the course is that we teach you how to think strategically about how you use LinkedIn to get the most value out of the platform and out of your LinkedIn network as possible.

The course includes not only hours of video, broken down into 9 important lessons, but also provides you with "homework" in the form of worksheets to complete at the end of each lesson to reinforce what you've learned and to help you customize your LinkedIn strategy for you. The course also includes a complete LinkedIn action plan for you to use to plan the next three months of LinkedIn activity.

Complete the course at your own pace, and hop over to LinkedIn after each lesson to implement what you've learned right away.

Is 2021 the year you want to finally make good use of LinkedIn - now that you know virtual networking isn't going anywhere anytime soon? If so, this course will be well worth the investment.

Check out LinkedIn Essentials here.

NY Announces Temporary Authorization Program for Recent Law Grads

In this week that NY law grads were originally scheduled to be taking the bar exam, the New York State Court of Appeals (the highest court in the state) has announced a revision of its rules to temporarily authorize qualifying graduates of ABA-accredited law schools to practice law in New York under supervision pending their admission to the bar. Supervising attorneys must be admitted to practice in New York for at least three years and must be in good standing.

To be eligible, an applicant must be qualified to take the New York bar exam, employed to practice law in New York, and not have failed a bar exam in the United States previously, in addition to having graduated from an ABA-accredited law school.

Those wishing to be granted this authorization must submit an application to the Appellate Division in the Department in which they anticipate being admitted to the bar. The application must include an affirmation in support from a representative of the employer who is admitted to practice law in New York, as well as the application form signed by the applicant seeking temporary authorization. All signatures are required to be by hand (as opposed to electronic signatures).

There are some limitations on what attorneys authorized to practice under the new rule will be able to do.  For example, an attorney authorized under this rule cannot conduct a deposition (examination before trial) or appear in court without the presence of the supervising attorney who is available to supplement or correct any written or oral statement or action made by the authorized attorney. If the authorized attorney appears without a supervising attorney, the matter cannot proceed.  There is an exception, however, for routine calendar calls - the authorized attorney may appear without a supervising attorney as long as a supervising attorney is immediately available to appear if necessary.

When an authorized attorney is appearing in any of the above instances, notice must be given to the judge before whom the appearance will be made. An authorized attorney must obtain prior Court approval to appear before the Court of Appeals or the Appellate Division of the Supreme Court. 

In addition, any legal or litigation documents prepared or drafted by an authorized attorney must be approved by a supervising attorney, and the supervising attorney's name must appear on the document. If a signature is required under 22 NYCRR 130, the supervising attorney is required to sign.

Authorized attorneys under this part are not authorized to open, maintain, or be a signatory on any attorney escrow account, and may not make a final disposition of any matter without prior approval of a supervising attorney.

Authorized attorneys are subject to the same disciplinary authority as practicing attorneys who have been admitted to the bar. Termination of authority under this part can occur in a number of ways, including revocation of the part, or revocation of the attorney's authority for good cause, as well as if the authorized attorney fails a bar exam in the United States or fails to sit for the Uniform Bar Exam by August 2021.

You can find the requirements here. You can see a copy of the amended Rule 524 here.