The rapid evolution of technology—especially those that we label “intelligent” or “autonomous”—is presenting a growing challenge to the legal profession. Charged with the ethical imperatives to remain competent, to communicate, and to be candid, counsel are confronting a reality in which the impact and efficacy of AI and many analytics tools—including those used for e-discovery—are hidden in process opacity from even the most digitally sophisticated. Algorithms and the data sets on which they are trained are at the heart of today’s advanced tools; assessment of their impact (which underpins competent legal advice) requires specialized knowledge that was never the subject of a law school syllabus.
Rule 1.1 of the ABA Model Rules of Professional Responsibility has long mandated that we remain competent in our areas of practice. Lawyers therefore necessarily engage in continual learning. We master enough about new subject matter to advise clients as their pursuits evolve (successfully or not) in new directions. Counsel often do that with the assistance of clients, who inform us about the services or products they are creating or buying or patenting. They explain, for example, how a specified static pressure determined the size of the fan blades they sold their customer (now litigation opponent) for the cooling tower it was building. Clients help clarify the meaning of the technical documents the opponent delivers in discovery and collaborate in uncovering probative facts. And counsel, in turn, are charged with knowing enough about the law applicable to the client’s pursuits so as to provide advice that is competent (or to recognize when we need to enlist the assistance of those with necessary expertise). That paradigm has instilled in counsel a confidence to tackle new subject matter and tools.
