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Can AI Tool Practice Law Without A License?
What Does It Mean to Practice Law?
The unauthorized practice of law (UPL) is providing legal services without a law license. Great. Clear as mud. In Ohio (my home state) it is illegal for non-lawyers to engage in the practice of law, which includes giving legal advice, drafting legal documents and representing clients in legal proceedings. The unauthorized practice of law can lead to including fines and civil liability for damages. The law here empowers only the Ohio Supreme Court to determine whether a person has engaged in the unauthorized practice of law.
Some samples of what constitutes the “rendering of legal services” is useful.
For decades, we have maintained that “rendering legal services” includes appearing on behalf of another in court, preparing pleadings and other papers for use in legal actions, preparing legal instruments of all kinds, and providing legal advice and counsel to clients. See Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650 (1934), paragraph one of the syllabus; Cincinnati Bar Assn. v. Telford, 85 Ohio St.3d 111, 112, 707 N.E.2d 462 (1999). In Ohio State Bar Assn. v. Kolodner, 103 Ohio St.3d 504, 2004-Ohio-5581, 817 N.E.2d 25, ¶ 15, however, we stated that the unauthorized practice of law also “includes representation by a nonattorney who * * * negotiates on behalf of an individual or business in the attempt to resolve a collection claim between debtors and creditors.”
Of note, the Ohio Supreme Court has found that some negotiating on behalf of parties in a monetary dispute is not “rendering legal services.” Cleveland Bar Assn. v. CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-6108, 857 N.E.2d 95. In that case, the court found that simply conveying an approved figure from one party to the other “hardly requires legal skill.” Id.
The court’s stated purpose for prohibiting UPL is “protecting the public [without imposing] impractical and unnecessary technical constraints.” Henize v. Giles, 22 Ohio St.3d 213, 218, 490 N.E.2d 585 (1986), citing Cowern v. Nelson, 207 Minn. 642, 647, 290 N.W. 795 (1940). For purposes of this post it is assumed that the other 49 state jurisdictions have the same broad outlines on UPL. Check your state law as your mileage may vary as is often said.
What about AI?
Legal AI tools for purposes of this post come in two broad categories: One, those targeted to lawyers in their practicing of law and those targeting the public at times supplanting the work lawyers do now. The AI tools provided to lawyers are not relevant to this topic. The use of AI tools by the public to, at times, obviate the need for a lawyer or assist an otherwise non-lawyer, but nonetheless business savvy person to be their own lawyer is another question.
Your AI Lawyer Will See You Now
I have previously discussed this concept with lawyers and non-lawyers alike. Someone is going to create this AI-powered service and UPL will be born. What will it be? It will be a tool to give otherwise cost prohibitive financial disputes an arena for resolution that serves both parties. Although there are no statistics that could be useful, it is easy to manage that hundreds of thousands of low cost legal disputes go un-litigated every year because the cost of hiring a lawyer makes no financial sense. For example, consider a bartender or waitress leaving an apartment and their landlord declines to return their $500.00 security deposit. No matter whose facts are stronger, both will likely reason that the hiring of a lawyer makes litigating the issue non-viable. Moreover, utilizing the small claims system available in most jurisdictions still involves filing fees, court appearances and other costs, delays and time away from work, school and family obligations. Unscrupulous tenants or landlords, in this way, can game the system and take advantage of these realities. Into this arena of untapped, un-litigated, but likely legitimate claims (some at least) comes AI.
Considering the above hypothetical dispute, tenant believes they are entitled to return of their security deposit. They arrive at myailawyer.com (not a going concern, merely a hypothetical for this post) and pay $29.99. Their enrollment in the tool prompts them to enter the facts of their circumstance through a series of pre-populated dropdowns, checkboxes and some open text fields. Providing the landlord’s contact information, the tool automatically sends an email to the landlord alerting them that the tenant has engaged the AI lawyer to resolve the dispute. The landlord has the option to then enroll herself, pay the same $29.99, offer their facts in opposition to the tenant’s. From there, it is all math.
The AI tool can read, understand and apply the facts from both sides to the disputed security deposit return. It can assemble statistics about the most closely related fact patterns in published legal decisions. From there, it can produce a probability score for each side regarding their likelihood of prevailing on all or some of their claim in court. Finally, it can produce a proposed settlement based upon that likelihood of success score. If both parties accept, the payment is exchanged after they both sign a settlement agreement. The AI tool takes 2.5% of the settlement total as an additional payment and that is that. No court, no lawyers (at least human ones) and yet, the parties are given a reasonable method to assess the value of pursuing their claims in court. If at any point either party is dissatisfied with the proposed settlement, they can opt out and will be provided documentation to file the matter in the local jurisdiction as appropriate. The AI lawyer has done their job. Now, imagine this tool being able to process 400 of these cases every day at the speed of….well, ChatGPT.
The above is just one slice of the legal market into which AI tools will enter seeking to tap a market that we human lawyers are not interested in participating. If I, or anyone else, were to tell you we were certain that such a tool’s offer to the public constituted the unauthorized practice of law we would be misleading you. The truth is, no one knows for sure. But, someone will be the first into the arena and they will be sued, and it will be such a Streisand effect constituting the best free publicity a start-up company could ask for. And, they just might prevail. We will all soon because that day is coming and it will likely come before the year is out.
The Imaginary Lawyer Powered by AI Will Represent You Now
Another likely use of ChatGPT that is already occurring is non-attorneys representing themselves, but making their opposition believe they have hired a lawyer. ChatGPT has the capacity to draft all manner of legal documents, including demand letters, pleadings, draft complaints, letters citing statutes, regulations and case law.
What About Access To Justice?
The American Bar Association has identified access to justice as a human right.
“International standards recognize access to justice as both a basic human right and a means to protect other universally recognized human rights. Too often, even when rights exist on paper, enforcement of these standards is weak. Where human rights protections are lacking, marginalized groups are often vulnerable to abuses and face significant challenges to realizing their rights, including within the formal justice system.”
Articles have already been published regarding AI and addressing so-called legal deserts. Mentioned in a previous post in a little more detail, one recent attempt to fit a non-lawyer with an earpiece and have that person argue on their own behalf in court being fed information and responses in that ear piece by an AI lawyer tool was nixed following threats of UPL litigation.
There has always been tension between lawyers wanting to sincerely protect the public from bad legal advice and also having an obligation to ensure legal services are available to all. AI lawyers provide a potential solution, but that solution is fraught with both legitimate accuracy concerns and, frankly, parochial concerns about the impact on the business of lawyering.
One prediction I am comfortable making….Lawyers holding to the belief that no AI tool can do what they do are mistaken. So much of law, civil and criminal, is transactional now. In one Ohio County alone, in the past ten years, more than 95% of all criminal and civil cases were resolved without a trial. That means the exchanging of documents and the assessing by respective lawyers of likelihood of success and eventually a resolution without trial. That process involves events and assessments that AI tools can do today. How long will it be before that reality results in the incorporation of those tools into that economic stream of business is anyone’s guess. But, it is a when, not if proposition.