CBA Record May-June 2023

gants where they are and by decreasing out of-pocket costs. Expenses associated with traditional legal representation have always been considered an obstacle to access to justice. In today’s economy, these costs may be insurmountable. AI is not a full solu tion to that problem, but it is an attrac tive partial solution. Also, AI may assist individuals who find it daunting to locate, interact with, and secure the services of an attorney. With AI, consumers may access legal services from the safety of their own home at any time of day or night, with out taking time off from work, arranging childcare, incurring travel costs and incon venience, or enduring the social discomfort of wading into unfamiliar territory. Finally, individuals, legal aid groups, and pro bono clinics may all access AI tools. Even when legal problems do not lend themselves to straightforward solu tions, technology can reduce costs by automating facets of legal representa tion, including the collection of informa tion and documentation. AI platforms may then generate legal instruments and pleadings that include repeated content. Thus, with AI, legal aid groups and clin ics may be able to reach and serve more people in need. First, AI technologies arguably equate to the unauthorized practice of law. How any given jurisdiction will approach a particular AI product or service is uncertain. It took decades before we had regulatory consensus that creators of legal forms should not be prosecuted for the unauthorized practice of law. Currently, bar associations and law firms across the country have already filed lawsuits against websites offering AI types of services, alleging the platforms engage in the unauthorized practice of law. Technology-based legal products and services can be understood as a form of limited scope representation but do not fit easily within the contours of Rule 1.2(c) of the Rules of Professional Conduct. Under that rule, limited scope representation requires the client’s informed consent, defined as "agreement by a person to a proposed course of conduct after the lawyer Cons of Using AI to Resolve Small Claims Cases

has communicated adequate information and explanation about the material risks of and reasonably available alternatives to a proposed course of conduct." Rule 1.0(e). The standards of adequate information and explanation of material risk and reasonably available alternatives assume a consultation that evokes a particular individual’s circum stances and goals. A technology based on a one-to-many paradigm does not lend itself to such a consultation. Second, AI chat bots are only as good as the information input into the system. It is worrying that companies delivering AI legal services are owned in whole or in part by people who are not lawyers. Law yers could and should be at the center of AI innovations involving the law but need more flexibility in the rules of professional conduct to do so. Another area of concern is the lack of regulation surrounding the entire AI industry. Tech giants recently issued an open letter calling for at least a six-month pause on large open experiences with technology companies developing AI. The letter states, “If such a pause cannot be enacted quickly, governments should step in and institute a moratorium.” Sup porters assert that in the race to develop and deploy powerful digital minds, tech companies may create tools that no one – including its creators – can understand or control. The Bottom Line As AI continues to explode, legal profes sionals must ask questions and explore the best way to implement this technology. We should look at existing services and programs based on less advanced technol ogies for guidance. For example, in 2017, the Lawyers Committee for Better Hous ing and the Lawyers Trust Fund of Illinois introduced Rentervention.com, a website where Chicago tenants can ask a virtual chatbot, "Renny," questions about their housing issues. Another website, Donot pay.com, describes itself as "The World's First Robot Lawyer" and connects users with a range of services, including filing small claims cases. By analyzing platforms like Renter vention.com and Donotpay.com and

learning from their successes and failures, everyone in the legal field may be better informed to consider questions such as, what security concerns exist for AI word users? Even in small claims cases, litigants may need to tender private information. What happens to that information and who has access to it? Other questions include whether there are, or will be, privileges to protect com munications between the user and AI platforms. Attorney client privilege is a cornerstone principle in the legal profes sion. When the attorney is a robot, does that privilege still exist? Does the platform retain any of the information shared by or sold to the consumer? If so, where is that data stored, and who has access to it? Finally, how will AI impact ethics rules? Attorneys pledge to follow certain ethical standards. Will AI creators have to take similar pledges? If attorneys incor porate AI platforms to their own prac tice, can the platform perform a service that the attorney, bound by ethics rules, cannot? Would the attorney be respon sible or liable for the platform’s actions? These questions are just the tip of the ice berg. The genie is out of the bottle. In my opinion, lawyers could and should be at the center of these innovations and solu tions but need more flexibility in the rules of professional conduct to do so. While we ponder these questions, the Illinois Supreme Court should establish a technology committee to outline the role technology can and should play in addressing the great divide between legal needs and legal services, particularly for low- and moderate-income consumers. Another committee should review and amend the rules of professional con duct and present regulatory structures to enhance the efficiency of technology based solutions.

E. Kenneth Wright, Jr., is the presiding judge of the First Municipal District in the Circuit Court of Cook County, Past CBA President, and a member of the CBA Record Editorial Board

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