Monthly Archives: June 2020

A.I. Will Augment Access to Legal Services for the Needy

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We all think of this robot as A.I., however, it is so much more.

By: Alexander Hewes, Esq.

        The Virginia State Bar’s (VSB) Diversity Conference Mission Statement includes, “…ensuring that Virginians changing legal needs are met.”  Unfortunately, the legal needs of the majority of Virginia’s citizenry are not being met at all.  Neither will the volunteer efforts of the legal profession and a handful of legal clinics, no matter how well meaning, suffice to meet those needs.

        However, the expanding use of Artificial Intelligence (A.I.) in the legal arena offers opportunities to provide badly needed legal services to the many forgotten Virginians, well within the ethical confines of the VSB.  The spread of the Covid-19 virus has brought the need for expanded broadband coverage into sharper focus and, on a more hopeful note, may enhance the efforts already underway to bring rural Virginians closer to achieving equal access to justice.

The Legal Void

        In 2017, Virginia’s population with access to broadband reportedly remained at 96% and continued to rank within the top ten nationally in average connection speed, average peak connection speed and broadband adoption.  Yet, according to the 2015 FCC rural broadband report, approximately 64% of Virginia’s rural population lacked access to broadband (approximately 714,000 Virginians).  

        This gap in services to the rural population in Virginia is taking place alongside the explosion in data collection and the use of social media with A.I. applications multiplying exponentially. The numbers are mind-boggling. The percentage of adults in the United States who use social media increased from 5% in 2005 to 79% in 2019.

        Over the last two years alone, 90 percent of the data in the world was generated. The advances in the telecom sector, supplemented by the dramatic increases in processing capabilities, along with innovations in the field of software engineering, open new avenues to provide legal services to Virginia’s forgotten citizenry. A.I. is such a vehicle.

A.I.’s Impact on Legal Services

        A.I., generally referred to as cognitive computing, has been employed by the legal profession for some time.  As a few examples denote:

  • Natural-language searching in online legal research;  
  • Voice recognition technology for dictation and in court rooms; and
  • Predictive coding in e-discovery for scanning millions of documents in search of key phrases.

        The future holds promise for expanded applications of A.I. such as “outcome forecasting” (predicting outcomes of administrative and litigation proceedings based on analyses of historical data) and the use of chatbots (automated voice messaging) intended to supplement the attorney-client communications necessary for an effective representation.

         A.I. could also allow for access by clients to administrative and litigation-related filings.  The implications are also significant for extending the reach of legal services geographically, though dependent on the continued expansion of broadband coverage.

Ethical Concerns Related to A.I.

        As a starting point, it is important for attorneys to remain familiar with the relevant Virginia State Bar Rules of Professional Conduct (“Rules”), plus the Comments that follow each, along with certain Legal Ethics Opinions (LEO).  Beyond the Rules, there are additional ethical concerns that should be considered with respect to the use of A.I.

        Rule 1.1 Competence: Requires competent representation of a client based on having and providing the requisite legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

        Comment [6] to the Rule: To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education in the areas of practice in which the lawyer is engaged. Attention should be paid to the benefits and risks associated with relevant technology. 

        LEO 1872, approved by the Virginia Supreme Court on October 2, 2019, cites all of the relevant Rules and LEOs.  Collectively, they offer useful guidance on lawyer/client communications based partly or exclusively on the use of secure Internet portals, emails, or other electronic messaging.  Addressed in the context of utilizing a “virtual office”, the central point stresses the importance of the substantive information transmitted to clients under the circumstances, not the method of communication.  

        In addition to Rule 1.1, this LEO also cites the related and applicable Rules, namely, 1.6(a) and (d), Confidentiality of Information; 5.1(a) and (b), Responsibilities of Partners and Supervisory Lawyers; 5.3(a) and (b), Responsibilities Regarding Nonlawyer Assistants; and 7.1 Communications Concerning a Lawyer’s Services.

        Other relevant LEOs cited, and worth reviewing, are 1600, Aiding Unauthorized Practice of Law – Nonlawyer Personnel – Misconduct:  Level of Direct Supervision of Nonlawyer Personnel Required, 1791, Ethics of Email and Telephone Communications, 1818, Whether the Client’s File May Contain Only Electronic Documents; and 1850, Outsourcing Legal Services.

WHAT A.I. PORTENDS

        The algorithms that form the backbone of A.I. can have built in unintentional biases because of the neutrality of the data and the way it is being analyzed.  For example, using a commercial software application for screening prospective employees, entering certain criteria, could exclude certain minorities and other protected classes.

         Equally important, there are State and Federal privacy laws that come into play, particularly those dealing with patient healthcare and financial records.  Many of these laws provide for both civil and criminal sanctions in the event that they are breached.

        Nevertheless, A.I represents the future as data grows along with processing speeds and broadband coverage expands to rural and other poorly served population centers of Virginia.  The potential to extend the coverage of needed legal services for all Virginians through A.I. is real; with guidance from the VSB, A.I. can accomplish that task well within the ethical confines of the profession.

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Mr. Hewes is a former Trial Attorney with the U.S. Department of Justice; and an author/lecturer on IT and related legal issues. He is currently in private practice in Winchester, Virginia; and a member of the Invictus Editorial Board.

The Editor’s Corner (Issue 3 of 2020)

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Editor in Chief, Gus Bequai, Esq.

                                                     By: August Bequai, Esq.

                              “Experience never errs, what alone may

                                 err is our judgement” (Leonardo Da Vinci)         

Infectious diseases have plagued humanity since its beginnings. They have killed in the millions, and have caused the collapse of numerous civilizations. The word “quarantine” has its origin in 14th century Venice. Referred to as “guaranta giorni” (40 days), ships arriving in Venice’s were quarantined for 40 days before being allowed to land as a precaution against infectious disease. 

Examples of global devastation unleashed by epidemics abound. One of the earliest documented cases was that of Flu like disease in 1,200 BC; which ravaged Central and Southern Asia, Babylon and Mesopotamia. Many others followed. The Cyprian Plague (250-266 BC) savaged Europe; leaving one million dead in its wake. 

While the Antonine Plague (165-180 AD) killed 5-10 million in the Roman Empire alone, the Justinian Plague (541-542 AD) left 25-100 million dead in Europe and West Asia; and the Black Death (1347-1351 AD) left 75-200 million dead  in Europe, Asia and North Africa.

With the dramatic growth in commerce between Europe and Afro-Asia from the 17th century onward, Europe and the Mediterranean world continued to be revisited by  devastating epidemics.  The Egyptian Plague of 1609 killed more than one million; with the  Plague of Naples in 1656 surpassing it. The Icelandic Plague of 1707-1709 wiped out 36 percent of its population, and the Russian Plague of 1846-1860 left more than one million dead. 

The Spanish Flu killed between 17 million and 200 million worldwide; while smallpox outbreaks  from 1877 to 1977 left 500 million dead worldwide. Some 40 million worldwide have lost their lives to HIV/AIDS  since 1981, and the seasonal flu kills 60,000-80,000 Americans annually.

The engine that drives epidemics is global trade; accompanied by mass migrations from the impoverished rural areas of the globe to its large urban centers. Microbes have been quick to follow. Those who suffer the most are always the poor, disabled and elderly. 

Epidemics  kill not only people, but they also ravage their societies. While global trade has spawned impressive technologies, COVID-19 should serve to remind us that global trade comes at a price. With a multitude of microbes waiting on the sidelines; some potentially more devastating than COVID-19, the challenge for us will be how best to employ global trade without endangering our survival.

96 Percent of Deepfake Videos Are Women Engaged in Sexual Acts

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by Sharon D. Nelson, Esq. and John W. Simek
© 2020 Sensei Enterprises, Inc.

We’ve spent a lot of time worrying about the possible effect of deepfake videos on the 2020 election.

While that’s a real concern, we were blown away by the stats in a report from Deeptrace Labs. The most startling statistic was that 96% of fake videos across the internet are of women, mostly celebrities, whose images are used in sexual fantasy deepfakes without their consent.

A deepfake is a video edited using an algorithm to replace someone on a video with a different person and make it look authentic. The result is a video portraying the person as doing or saying something they did not do. Deeptrace Labs identified 14,678 deepfake videos across a number of streaming platforms and porn sites, a 100 percent increase over its previous measurement of 7,964 videos in December of 2018.

Sadly, we imagine we’ll see a surge in lawyers representing exploited celebrities whose publicity rights have been violated. Far worse, we are quite sure those women (and non-celebrities too) feel physically violated by these images. Revenge porn (targeting ex-girlfriends/wives) has also been taken to a whole new level with the use of deepfake videos.

The top four websites dedicated to hosting deepfakes received a combined 134 million views on such videos. There is, sadly, no absence of demand for these images.

There are places you go on the internet (I’m not going to give them publicity here) with a lineup of celebrities. Their faces move, smile and blink as you move around them. They are fully nude, waiting for you to decide what you’ll do to them as you peruse a menu of sex positions. Inevitably, because there is so much money to be made, the sex will be of all kinds, including rape.

We briefly watched a snippet from one of the videos. It was creepy and nauseating. To think that a real woman somewhere would have to cope with seeing herself manipulated by a user in this manner is horrific. And of course, those behind the videos will move to using children as well because they can and because there is a market. The full force of the law needs to stop revenge porn, the violation of publicity rights of celebrities, and the non-consensual use of anyone’s face in these videos. Where the laws are currently insufficient, we need new and stronger laws.

Most of the states have revenge porn laws of some kind, sometimes weak laws with minor penalties. The laws tend to assume postings by a vengeful ex-spouse or lover rather than a mass market for products capitalizing on the demand for celebrities in sexual deepfake videos.

Sharing deepfake revenge porn is now a specific crime in Virginia (effective July 1, 2019). We have not seen a study of current revenge porn laws fail to specifically criminalize deepfake revenger porn videos, but it is a good guess that many state laws are now inadequate. The federal government (we know you are shocked) has not been able to agree on a law outlawing revenge porn deepfakes.

How do we combat the spread of $50 apps like DeepNude (thankfully defunct as we write, but there will be others), which could undress women in a single click? DeepNude was trained on more than 10,000 images of nude women and would provide the undressed woman within 30 seconds—and of course the image could be shared to smear reputations (sending it to the woman’s employer or friends and family) or to post online as revenge porn.

Let’s hope our legislatures and the federal government pass laws with teeth to put a stop to this online debasement of women.

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The authors are the President and Vice President of Sensei Enterprises, Inc., a legal technology, cybersecurity and digital forensics firm based in Fairfax, VA. 703-359-0700 (phone) https://senseient.com

Automation: A Tool to Access a Greater Population

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By: Chris Fortier

According to the ABA Future of the Legal Profession report, 78% of individuals with legal problems do not consult a lawyer.  A scarier statistic, 16% of those do not consult anyone about their issue. Of the reasons these individuals stated as to why they do not consult lawyers, affordability and the client experience were the reasons they did not go to a lawyer.  As a legal profession, we have to improve the client experience.  We have to create affordable options that serve our clients while allowing lawyers to have a living.

One of those tools we can use to improve the client experience is automation. Almost all parts of your workflow can be automated.  According to solo attorney Lauren Lester of Denver, Colorado, the business case for automation means “opening the vault to legal documents (which the internet and alternative legal service providers already do), automating the tasks that we are not valued to do (such as cutting and pasting clauses or paragraphs from other documents), and focusing on what makes us who we are; listening, providing advice, solving problems, and reviewing proposals to make sure they fulfill what our clients want or need.”

However, before you purchase your first piece of automation, draw out (or design) your workflow. Think of the client experience from the first interaction through the end of the representation. Where are decisions made? Where does data move between you and your employees or your client, opposing counsel, or the courts?  What products do you produce in your practice?  Answering these questions can clear up your workflow and show you where you can automate.

While client and case management portfolios such as Clio and RocketMatter can provide many services to simplify managing your law office, there are many free (and pay) products that allow you to move mundane tasks to the cloud or your computer.  Numerous products exist in the marketplace to cover client intake, customer relationship management, document automation, calendaring, time management, billing, messaging, blogging, and website management, amongst others.

When shopping for products, consider your staff’s needs as well as fellow attorneys in your firm. Many products have significant costs, therefore, these investments cannot be taken lightly. Discuss your processes with your staff, looking for their pain points, and see possible improvements in customer service?  Where do you see struggles in achieving your business goals?  These are your starting points for shopping. Many products give you a free seven, ten, fourteen, or thirty-day trial and are meant to orient you to the software.  To get a full feel of how the software can change your processes, you will need to operate with it for a year.

Finally, consider attending a technology conference such as VSB TechShow, full of tech related advice with speakers and attendees are enthusiastic and willing to share their experiences.

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Chris Fortier serves on the Board of Governors of the Diversity Conference, working on Invictus and the Diversity Conference website and social media. In his day job, he is an Attorney-Advisor at the Social Security Administration (SSA). He is a past ABA TECHSHOW and VSB Techshow speaker. The views in this article are his and his alone and do not reflect those of SSA or the Federal Government.

Get the Most out of Your Millennial Lawyers

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By Victoria Walker, Esq.

VSB Techshow 2020 was to feature a session entitled, “Young Lawyers and Tech: How Everyone Can Learn & Benefit” which will look at how Millennial lawyers are shaping the practice of law. Below are some tips that would have been highlighted in that discussion:

Remember Who Millennials Are

Millennials don’t have the best reputation. They are seen as entitled, selfish, lazy and impatient. While these characterizations may be unfair, it is important to consider how Millennials grew up. Helicopter parenting rose to prominence (or at least earned its moniker) in the early 2000s when the early Millennials, parented by Baby Boomers, started college. Admissions professionals noticed the increasing involvement of parents in every part of the college application, matriculation and graduation processes. Helicopter parents have frequent communication with their children and they maintain a high level of investment and interest in the lives of their children well into adulthood. This upbringing shapes the way Millennials view authoritative figures, including employers.

Now consider the economic landscape Millennial lawyers have had to navigate. Millennials have fewer assets, more debt, and lower income than older generations. Many Millennials weathered the Great Recession better than those who started their careers in the Great Depression because they were able to live with their wealthy (helicopter) parents early in their careers. The way in which Millennial lawyers were raised (more hands-on parenting with frequent two-way feedback) and entered their careers (more debt and lower income) has influenced their workplace expectations. They expect their employers to demonstrate a commitment to their long-term personal and professional success early on, but it takes time for Millennials to commit to their employer’s long-term success.

Your Organization’s Culture Matters

Millennial lawyers are committed to diversity and inclusion (D&I) but these values have broader implications. Young lawyers want to see a change to the “country club” culture that has been a feature of the legal profession for so long. There is an expectation that leaders will walk the talk when it comes to achieving and maintaining D&I, as demonstrated by plans and benchmarks that hold decision makers accountable for meeting organizational D&I goals.

In addition to a commitment to D&I, Millennial lawyers want a workplace that facilitates relationship-building through formal and informal mentorship programs and collaboration. One way to signal to employees that these programs are valuable is by making the time spent bonus-eligible. Do not make your employees choose between billable hours and time with a mentor/mentee. When it comes to collaboration, employers should ensure that opportunities to work closely with partners and other decision makers are made widely and equally available to all employees.

Millennials Value Efficiency

Despite their reputation, Millennials are hard workers but they are always looking for ways to make processes more efficient. The adage “That’s the way things have always been done” is not a sufficient explanation for inefficient processes when it comes to young lawyers. Time wasted on inefficiencies could be better spent on pro bono matters, brand management or other professional development.

Similarly, Millennial lawyers regularly seek feedback on the substance of their work because it allows them to work more efficiently. This habit is often viewed as an inability to work independently but feedback allows young lawyers to improve their work before it is complete as opposed to after. Young lawyers do not want to repeat mistakes or make avoidable mistakes and they are less likely to do so if you tell them why something they have done is wrong and set forth clear expectations. By providing your Millennial lawyers with constructive feedback and guidance, you help shore up their commitment to your organization and facilitate them becoming more efficient lawyers.

Finally, technology plays a role in allowing Millennial lawyers to work more efficiently. From virtual private networks to practice management programs, Millennials embrace the possibilities that are inherent with technology. While their predecessors largely focus on the risks inherent to new technologies, young lawyers tend to focus on the many benefits, such as mobility, automation, connectivity (with colleagues and clients), a better client experience, and lower overhead costs. These are all efficiency benefits that accompany the adoption of technology amongst legal service providers. Create space for your young lawyers to offer suggestions on making processes more efficient, including solutions that are technology-based. When organizations embrace technology and its benefits, they signal to Millennial lawyers that they are committed to working efficiently. This is a winning message for today’s young lawyer.

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Victoria Walker, Esq., is Associate Counsel with the Board of Veterans’ Appeals in Washington, DC. She also serves on the Board of Governors of the VSB Young Lawyers Conference.