In our final OBLIC Update on AI for 2023, we’ll first consider some updates on recent developments in the realm of generative AI touching the legal industry. We then round out this fourth installment with practical guidance on deploying these tools in your law practice.  

Administrative Regulation of Generative AI 

Attention is being paid in Washington, D.C. to tech developments, with the Biden administration issuing an Executive Order on the importance of establishing action to ensure the safety and trustworthiness of generative artificial intelligence. This is seen as a starting point that will be a catalyst for more robust policy developed by Congress in the future.  

 Some points being discussed and recommended: 

• “Watermark” works created by AI specifically including voice and visual replications known as “deep fakes” 
• Create protections for areas with critical sensitivities such as employment, housing, credit, education, and healthcare 
• Establish data privacy standards (which will need codification by Congress) 
• In a military capacity, require testing and assurances to guarantee against the development of weapons 

Experts agree that policy and regulation are lagging behind deployed technology, and policy development must become a national priority across industries and political parties. Nicol Turner Lee, a senior fellow in governance studies and director of the Center for Technology Innovation at Brookings emphasizes that comprehensive data privacy goes hand-in-hand with policies regulating the development and use of generative AI tools.  

Will the average person be able to identify “watermarks” or will consumers still feel like they need a written disclosure? At a minimum, the Executive Order formalizes the call to action on responding to this major technology development. 

Lexis Rolls Out Lexis+ AI and Thompson Reuters Integrates AI Tools 

Now live, Lexis+AI offers a closed-universe AI-powered interface for subscribers to research, draft, and study legal corpora. Updating the research interfaces, Lexis touts the new platform to be “true conversational search” that interacts with the user. These tools appear poised to save attorneys time with research and drafting, while still requiring attorney-driven guidance, analysis, and a human touch. For more on Lexis+ AI, schedule a demo or read more here.  

Earlier this year, Thompson Reuters announced its acquisition of Casetext, a legal technology and AI startup, including a key product called “CoCounsel.” CoCounsel is an AI-assisted natural language processing, analytic, and generative tool that is capable of legal research, drafting, contract analysis, and litigation support. Thompson Reuters has also committed to investing $100M annually in developing generative AI tools, some of which will integrate with Westlaw Precision. Westlaw Precision became available to US subscribers on November 15, integrating CoCounsel. LawNext.com reports that Thompson Reuters utilizes “retrieval augmented generation” to analyze relevant data from Westlaw and filtering it through Microsoft Azure OpenAI and OpenAI’s GPT-4. While no user data is “being directly shared outside the Thompson Reuters environment,” LawNext.com reports that Thompson Reuters has prohibited its vendors from using Westlaw customer data to train generative AI tools.  

Note that OBLIC is not affiliated with LexisNexis or Thompson Reuters and does not take a position on the use of any specific propriety research tool. The above is for informational purposes only.  

Practical Guidance 

Given the cautions and opportunities developing over the last year, we offer some practical best-practice guidance for small and mid-size law firms: 

1. Stay informed about emerging technology – both the opportunities and advantages offered by its use as well as the risks and pitfalls. Remember our Rules of Professional Conduct encourage continuing study of technological trends. (RPC 1.1 Comment [8]). 

2. Prioritize confidentiality of sensitive client information and data privacy. Protecting sensitive client information should remain a top concern for attorneys.  

• Employ cybersecurity basics such as screen locks, strong passwords, and multifactor authentication; 
• Closely review and vet vendors’ data privacy provisions; 
• Consider whether collecting or storing sensitive data such as social security numbers is necessary and schedule the removal of that information (such as scanned copies of tax returns or financial records) as soon as it is no longer necessary. (RPC 1.6). 

3. Any outputs created by AI tools must have attorney-oversight and critical review. See Mata v. Avianca as discussed in our July 24, 2023 OBLIC Alert. 

4. Create internal office AI Use Policy. An AI Use Policy may include:  

• disclosure of use of AI tools or applications to clients; 
• oversight and review of all output from AI tools;  
• prevent disclosure of sensitive client information into non-secure AI tools, or limit which AI tools or applications are used by the firm;  
• only deploy AI tools that manifest explainability, the ability to justify or explain how the AI tool generated its response.  

Law firms large and small across the country are ramping up their use of semi-autonomous processing to streamline their practices, assist with document or contract review, and draft and research legal matters. While many of these AI tools have been in use for the last several years, the leap forward with generative AI presents opportunities and risks to be regularly evaluated by lawyers.  

We look forward to continuing to offer guidance and welcome your input on these topics, especially as it relates to the development of AI Use Policies in your firms.  

ICYMI: 

Natural Language Processing applications like ChatGPT, Google’s Bard AI, and Meta’s LLaMa have advanced the ability of computer processing to generate human-like written responses to prompts. (5/24/23)  

Two lawyers were sanctioned for their unfortunate misuse of ChatGPT in a New York case.  (7/24/23) 

The judicial system is playing a role in AI generation, with recent rulings that may have a regulating effect.  (9/14/23) 

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