CBA Record March-April 2025

case analytics, such as analyzing settlement demands, evaluating medical records, or reviewing deposition transcripts. The uses keep expanding, especially in the areas of automation. Many routine tasks can be done faster and easier, freeing up time for other work that takes more thought and expertise. One note of caution: Rule 1.5 requires the fees charged to clients to be reasonable. Just because a task took two hours to complete in the past doesn’t mean you can bill for two hours after automating the task. Under Rule 1.5, a flat fee or the correct hourly charge is appropriate instead. The duty of technological competence is ever-changing. I remember having dis cussions with people debating over cloud computing and whether it was advisable to put your client’s data in the cloud. Now, that is commonplace, but there are still reasons why, for particular prac tice areas, that does not make sense. For example, some people doing work with the U.S. government are prohibited by contract from using foreign-based cloud services. And I’m aware of some people who will not do sensitive work connected to the internet in any way, using a differ ent computer for email and the web. There is no hard and fast rule where all technologies make sense for all purposes. Our bar association serves an essential function in bringing us together to dis cuss these technological issues and to help us learn from each other. Many times, these teachers are young lawyers.

LPMT BITS & BYTES BY KEVIN THOMPSON Duty of Technological Competence

I n this YLS-themed issue, I am struck by how much young lawyers have kept the practice of law moving forward into new territories. In particular, I’m thinking about the duty of technological competence we owe to our clients under Rule 1.1, Comment 8. The duty of com petence means we need to understand the benefits and risks associated with relevant technology. It does not require lawyers to be technological experts in all areas; a competent practitioner could be one who brings in relevant experts to learn from. An expert could be your IT person or someone from vendor support. An expert could also be a young lawyer. The use of social media by lawyers is one example where we can thank younger lawyers for pushing the boundaries of our profession in new and interesting ways. Years ago, lawyers couldn’t advertise at all, then discussions led to the adoption and updating of our rules. When legal blog ging became popular, I recall discussing at ABA TECHSHOW the dilemma faced by a Kentucky lawyer who had to have their state bar pre-approve every one of their blog posts. Thankfully, Illinois is much more progressive than other states when it comes to advertising. AI adoption is another example of a current area where young lawyers can take the lead. In January, the Illinois Supreme Court released its policy on artificial intelligence in the courts. This forward thinking policy is adaptable as technol ogy evolves. Unlike other policies, the use of AI does not need to be disclosed in a court pleading but is instead expected to

be commonly used. In relevant part, the rule states that “The use of AI by litigants, attorneys, judges, judicial clerks, research attorneys, and court staff providing simi lar support may be expected, should not be discouraged, and is authorized pro vided it complies with legal and ethical standards.” Following on to the general rule regarding technological competence, it states “Prior to employing any technol ogy, including generative AI applications, users must understand both general AI capabilities and the specific tools being utilized.” Many users do not understand that the terms of service for both the free and paid versions of AI. ChatGPT, for example, allows the model to be trained on what was submitted. It is possible to opt out of that, but still I recommend—out of an abundance of caution—that nothing pro prietary or confidential be shared with the service. This would also include anything that should be kept confidential due to the attorney-client privilege. Another popular tool, Google Gemini, also has free and paid versions. The paid version does not use your data to train its models, but the unpaid version does. In fact, their terms of service explicitly state, “Do not submit sensitive, confidential, or personal information to the Unpaid Ser vices.” So, before implementing any soft ware tool in your practice, be sure you’ve read the terms of service and understand how it uses the information you submit. AI can be used for many tasks, includ ing research, document review, and draft ing. Some of the interesting uses involve

Kevin A. Thompson heads the intellectual property practice at Levin Ginsburg, where he is a partner; he also chairs the CBA’s Law Practice Management and Technology Committee and co-chairs the International

and Foreign Law Committee. He receives no compensation by vendors for products mentioned in this column.

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