In the high-stakes world of business litigation, the rapid advancements in Artificial Intelligence present both unprecedented opportunities and significant new challenges. While AI promises to revolutionize efficiency, the ethical pitfalls and inherent limitations of these tools demand meticulous attention from sophisticated businesses and their legal counsel. Understanding the ‘how’ and ‘why’ of ethical AI integration is no longer optional—it’s a strategic imperative (and in some jurisdictions, it’s become an ethical requirement as well). As the Mata v. Avianca case dramatically illustrated, careless or unethical use of AI can lead to severe consequences, underscoring the critical need for vigilance.
Artificial Intelligence and its Limitations
In just the last two years, Artificial Intelligence has improved dramatically, particularly in its ability to perform “deep research.” AI is becoming more deeply embedded in all sorts of everyday tasks we perform, from performing web searches, to drafting emails and other correspondence, to summarizing large amounts of data. As AI’s efficiency and abilities improve, we can expect AI to become even more central to legal practice, allowing attorneys to leverage efficiencies to achieve savings of both time and resources for their clients.
But generic Artificial Intelligence systems can still hallucinate inaccurate cases, statutes, and other sources. Even specific databases for legal sources — which are far less likely to create citations out of whole cloth – can still mischaracterize or misconstrue existing case law or statutes. Or their results may be less than accurate because the prompt they were given was insufficiently detailed or clear. The AI tools in those legal databases can also reach conclusions—presented with absolute certainty—that simply are not supported by the cases the AI cites.
Effective Ways to Use AI
Despite the continued limitations of AI, it has the promise to dramatically improve the efficiency of legal work by taking over tasks that AI performs better than humans. The critical undertaking is determining where AI can improve litigation tasks and then ensuring the AI is used in safe, secure, and trustworthy ways. Artificial Intelligence, for example, can analyze large data sets faster and more accurately than human beings can. By taking over routine, high-volume tasks such as first-level document review, AI can significantly reduce the hours traditionally required, translating into significant cost savings for our clients. Similarly, in legal research, AI’s ability to quickly sift through vast legal databases means our attorneys can spend less time on preliminary searches and more time on high-value strategic analysis. Finally, editing, proofreading, and formatting are all excellent tasks for AI to perform.
In each instance, Artificial Intelligence can make your attorney more efficient and more productive. But lawyers must continue to review the work product of AI carefully, ensuring the work product is accurate and free of errors. This duty of competence extends to understanding AI’s inherent biases, which can stem from the data it was trained on, and recognizing its limitations in AI’s understanding of nuanced legal arguments or sensitive factual interpretations. For instance, while AI can identify patterns, it lacks the human judgment to assess witness credibility or to craft compelling narratives for a judge or jury. Therefore, every output from an AI tool must be scrutinized by a capable attorney exercising independent professional judgment. Even when AI can serve as a useful brainstorming partner, making human connections and exercising common sense and the wisdom that comes with human experience are still beyond AI’s skillsets. Attorneys must continue to exercise their judgment and skill to provide the best possible representation for their clients – these are tasks no AI can take over.
Ethical Considerations
The California State Bar has published guidelines for ethical usage of AI consistent with attorneys’ duties of professional responsibility. These guidelines focus on ensuring that client information remains confidential, that attorneys using AI do so competently to reduce the risks created by AI outputs that are inaccurate or biased, that attorneys are transparent with clients and the court about how they use AI, and that attorneys do not bill for ‘time saved’ or for tasks performed solely by AI without human oversight. Instead, billing must accurately reflect the attorney’s actual time and effort in prompting, reviewing, editing, and verifying AI-generated content, ensuring the client receives full value for the legal services rendered.
The California Bar’s emphasis on confidentiality is paramount. Using general-purpose AI models that are not designed with confidentiality and client security in mind risks exposing sensitive client data, trade secrets, or proprietary information, as these models may use input data for future training or store it insecurely. Responsible attorneys must strictly adhere to protocols that ensure client data is never exposed to insecure AI environments. This includes utilizing secure, enterprise-level AI platforms with robust data privacy agreements designed to segregate the attorney-provided information from the AI’s retained data, or employing AI tools that operate within a firm’s private, firewalled environment, ensuring compliance with attorney-client privilege and work product doctrines.
Artificial intelligence is not going to replace attorneys any time soon. Nonetheless, all attorneys should be exploring how Artificial Intelligence can make their practice more efficient and effective. They must also learn how to use AI ethically and competently – protecting client’s sensitive data, recognizing and minimizing AI’s tendency to reflect harmful and inaccurate biases, and understanding AI’s real limitations.
Navigating the complexities of business litigation in the AI era requires counsel that is not only highly skilled in the courtroom but also proficient in leveraging cutting-edge technology ethically and effectively. Our seasoned trial attorneys at Keller Anderle Scolnick are at the forefront of this evolution, ensuring that AI enhances our formidable legal judgment and strategic acumen, never replaces it. When your business, your livelihood, or your freedom are on the line, partner with a firm that combines unparalleled trial experience with a forward-thinking, ethically sound approach to modern legal practice. Bring us your toughest case. We’ll get the job done.