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  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.
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.