The White House Office of Science and Technology Policy, which is working on an artificial intelligence (AI) governance framework, released its Blueprint for an AI Bill Rights in October 2022. The MSBA recently highlighted the U.S. Equal Employment Opportunity Commission’s efforts at governing AI in employment decisions. See EEOC Issues guidance on AI Use in Employment Decisions.
At its Midyear Meeting in February 2023, the ABA adopted Resolution 604, written for lawyers, firms, vendors, software developers, and other AI stakeholders. Resolution 604 provides guidelines for the use of AI, stating that AI developers should:
- ensure their products are subject to human authority, oversight, and control
- include accountability measures if developers have not taken reasonable steps to mitigate harm or injury
- provide transparency and traceability for their products
Resolution 604 also encourages federal and state lawmakers and regulators to follow the same standards when making AI policies.
This is not the first time the ABA addressed AI in the practice of law. In 2019, the ABA adopted Resolution 112, urging “courts and lawyers to address ethical and legal issues arising from the use of AI in the practice of law.” In 2022, the ABA passed a resolution urging the government to refrain from using pretrial risk assessment tools unless the tools are both transparent and unbiased. See Resolution 700.
Of course, this won’t be the last time the ABA addresses AI in the practice of law. ABA Model Rule 1.1, Comment 8 provides:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
Of course, some may be wondering how these ABA resolutions and Model Rule 1.1 are applicable to the everyday practice of law in Maryland. Lawyers should be assisting their clients in reviewing how their clients are designing their AI and ensuring the development of the AI is aligned with the ABA principles set forth in Resolution 604. Contract review is especially important here if your client is purchasing AI platforms from developers. Know that existing laws probably apply in the event someone can show damages emanating from your client’s use of AI.
Whether you are representing a business or an individual, AI will impact the future of the practice of law. Lawyers are and will be called upon to review how their clients are developing and licensing AI, identify potential liability exposures, and recommend remedial measures. Over time, lawyers will be asked to evaluate cases when AI has gone too far and harmed someone. AI tools will also be available to assist lawyers in the practice of law, e.g. document review, preparation, discovery, templates. Be prepared by keeping updated on the governance framework currently being developed by lawmakers and industry leaders. It looks like the ABA intends to be a part of that development.
Want to learn more about Artificial Intelligence? Click here for MSBA’s webinar, AI: The Attorney’s Secret Weapon.