Flash back to 2013. New firms began to use machine-language to mine trends and insights from legal databases. Their output looked an awful lot like legal advice, even if it was generated by algorithms. At the time, I worried that these firms may inadvertently run afoul of laws barring the unauthorized practice of law (UPL). Over lunch, I warned an executive of one of the leading firms about these risks. He acknowledged my concern, and said he would have a memo prepared. Who knows what came of it. I sketched some of these concerns in a short article titled Robot, Esq., a book chapter, and in a post titled, "The Looming Ethical Issues for Legal Analytics." Here is a snippet:
The fourth issue, and the other elephant in the room, is Unauthorized Practice of Law (UPL). Reading graphs to offer advice on how a case should settle, or where it should transfer to, is at its heart the practice of law. That an algorithm spit it out doesn't really matter. Non-lawyers, or even lawyers not working for a law firm, are unable to give this type of advice. Data analytics firms should tread carefully about handing out this type of personalized advice outside the context of the attorney client relationship.
Though, for the time being, I'm not too worried about this final issue The vast majority of the UPL problems are obviated when a law firm, or a general counsel, serves as an intermediary between a data analytics firm, and a client (non-lawyer). As long as a lawyer somewhere in the pipeline independently reviews the data analytics recommendations, and blesses it, I don't see any of these as significant problems (though bad advice may result in a malpractice suit). I'm working on another paper that analyzes the law of paralegals (this is actually a thing), and what kind of legal tasks can be delegated to paralegals under the supervision of a lawyer.
But, when data analytics firms try to expand to serve consumers directly–like LegalZoom–we hit this problem hard. When there is no lawyer in the pipeline, things get difficult very quickly.
Flash forward to the present day. ChatGPT and other similar AI tools directly help pro-se litigants litigate. Consider the best-laid plans of Joshua Browder, who created a system to challenge traffic tickets.
