Ethical Rules for Using Generative AI in Your Practice | Model Rule 5.5: Unauthorized Practice of Law

Steve Herman is special counsel in Fishman Haygood’s Litigation Section. He has served on the American Association for Justice (AAJ) Board of Governors since 2014 and currently serves as Chair of the AAJ’s AI Task Force. He also serves on the standing Louisiana State Bar Association (LSBA) Rules of Professional Conduct Committee and has given numerous presentations on the use of AI in the legal profession. In this biweekly series, he identifies ethical rules for generative AI usage in law practice. Read his previous analysis of Model Rules 1.7 and 1.8 here.

At the risk of stating the obvious, we are still in the early days of what we believe to be an “AI Revolution” in the way that goods and services, including legal services, are and will be provided. Which means that we do not, at this point, have much in the way of formal guidance.*

With that preface, in this series we will examine some of the Professional Rules[i] and other legal requirements that could potentially be implicated by a law firm’s use (or non-use) of ChatGPT or other Generative AI (GAI). Last time, we reviewed the Model Rules to consider if you have an independent interest in the field of AI. To learn about concerns surrounding the unauthorized practice of law, keep reading.

Model Rule 5.5: Unauthorized Practice of Law

 Both in the sense that: (1) Are some of these services that are not owned, maintained, or supervised by an attorney offering what is effectively “legal advice” without a license? and/or (2) Is an attorney who is hosting, supervising, maintaining, or otherwise administering some of these services effectively providing legal advice to clients and/or regarding matters in States where he or she does not maintain a license?

Note that, as per Official Comment [2] to Model Rule 5.5, “the definition of the practice of law is established by the law and varies from one jurisdiction to another.”[ii]

In Lola v. Skadden Arps, the Second Circuit Court of Appeals held that a contract lawyer exclusively performing document review “under such tight constraints that he exercised no legal judgment whatsoever” was not engaged in “the practice of law” within the State of North Carolina.[iii] This decision marked a turning point in how the “practice of law” will be defined in the coming years as technology continues to advance. According to this decision, “if a lawyer is performing a particular task that can be done by a machine, then that work is not practicing law.” [iv]

In Janson v. LegalZoom.com, Inc., the District Court for the Western District of Missouri denied the defendant’s motion for summary judgment as to the unauthorized practice of law where “LegalZoom’s internet portal offers consumers not a piece of self-help merchandise, but a legal document service which goes well beyond the role of a notary or public stenographer.” [v] Regarding legal self-help, “courts, state legislatures, and bar associations in the near term will have to decide whether increasingly sophisticated services such as DoNotPay constitute the unauthorized practice of law.”[vi]

In the final installment of this series, Herman will discuss bias concerns in AI and give his closing thoughts on GAI’s quickening growth in the legal field.

*On July 29, 2024, the ABA issued formal guidance for the use of GAI. Like much of the previous guidance and commentary, the ABA focused on (i) Competence, (ii) Confidentiality, (iii) Communication with Clients regarding the Use of AI, (iv) Candor Toward the Tribunal, (v) Supervisory Responsibilities, and (vi) the Reasonableness of Fees. Read more here.

[i] ABA Model Rules of Professional Conduct

[ii] Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law

[iii] Lola v. Skadden Arps, 620 Fed.Appx. 37 (2nd Cir. 2015)

[iv] Simon, Lindsay, Sosa & Comparato, Lola v. Skadden and the Automation of the Legal Profession, 20 Yale J.L. & Tech. 234, 248 (2018)

[v] Janson v. LegalZoom.com, Inc., 802 F.Supp.2d 1053 (W.D.Mo. 2011)

[vi] Drew Simshaw, Ethical Issues in Robo-Lawyering: The Need for Guidance on Developing and Using Artificial Intelligence in the Practice of Law, 70 Hastings L.J. 173, 178 (2018)