In
Season
9,
Episode
4
of
“Notes
to
My
(Legal)
Self,”
I
had
the
pleasure
of
diving
into
the
world
of
AI,
ethics,
and
law
firm
risk
management
with
Jeff
Cunningham,
a
general
counsel
specializing
in
ethics
and
risk
management
for
law
firms.
This
lively
discussion
covered
everything
from
the
Apple
logo
on
his
blog
to
deep
fakes,
document
retention,
and
the
existential
threat
AI
poses
—
not
to
lawyers,
but
to
the
billable
hour.
The
Ethics
Of
Hoarding:
Letting
Go
Of
Legal
Documents
Jeff’s
contribution
to
our
discussion
started
with
a
topic
lawyers
seldom
enjoy:
document
retention.
His
advice?
Less
is
more.
“Lawyers
hoard
information,”
Jeff
noted,
comparing
this
tendency
to
the
way
many
of
us
amass
digital
photos
we’ll
never
review.
The
problem
with
hoarding
isn’t
just
storage
costs
—
it’s
the
potential
risk
of
retaining
data
you
no
longer
need.
Key
takeaway:
You
can’t
lose
what
you
don’t
have.
Develop
a
clear
retention
policy,
dispose
of
unnecessary
data,
and
focus
on
safeguarding
what’s
truly
essential.
The
AI
Spectrum:
Ban,
Embrace,
Or
Shrug?
Jeff
painted
a
picture
of
three
types
of
law
firms
when
it
comes
to
AI:
-
The
Banners.
Firms
that
try
to
outright
ban
AI,
despite
its
ubiquity
in
tools
like
Westlaw,
Lexis,
and
Google. -
The
Embracers.
Tech-savvy
firms
actively
exploring
AI’s
potential. -
The
Indifferent
Majority.
Firms
leaving
AI
adoption
to
individual
discretion.
While
banning
AI
might
seem
like
a
way
to
avoid
risk,
Jeff
argued
it’s
both
impractical
and
shortsighted.
AI
is
already
pervasive,
and
banning
it
outright
doesn’t
prevent
its
use
—
it
just
drives
it
underground.
Instead,
Jeff
recommended
a
middle-ground
approach:
crafting
an
AI
policy
that
provides
clear
guidelines
while
empowering
lawyers
to
use
AI
responsibly.
What
Should
Be
In
An
AI
Policy?
When
it
comes
to
crafting
an
AI
policy,
Jeff
highlighted
a
few
key
components:
-
Define
AI
Clearly.
Make
sure
everyone
understands
what
the
policy
refers
to.
AI
spans
everything
from
eDiscovery
to
autocorrect. -
Client
Disclosure.
Be
transparent
with
clients
about
AI
usage.
Jeff
humorously
noted
that
his
engagement
agreement
even
discloses
the
use
of
email
and
cloud
storage. -
Confidentiality
And
Proprietary
Information.
Safeguard
both
client
confidences
and
proprietary
data,
as
both
have
monetary
and
ethical
implications.
Jeff
also
encouraged
firms
to
view
AI
policies
as
a
foundation
for
education
and
exploration
rather
than
as
restrictive
mandates.
The
Ethical
Landscape:
AI
Competence
And
Communication
AI
presents
unique
ethical
challenges.
Jeff
emphasized
two
critical
areas
of
concern:
-
Competence
(Rule
1.1).
Lawyers
must
understand
how
to
use
AI
tools
appropriately.
In
the
near
future,
failing
to
use
AI
might
even
be
seen
as
a
breach
of
competence. -
Communication
(Rule
1.4).
As
more
firms
use
AI-powered
chatbots
for
client
intake,
transparency
becomes
crucial.
Prospective
clients
must
know
when
they’re
speaking
with
a
machine
and
have
the
option
to
talk
to
a
human
when
needed.
Jeff
likened
the
eventual
ubiquity
of
AI
in
legal
practice
to
email:
initially
resisted,
but
now
indispensable.
AI
And
The
Evolution
Of
The
Billable
Hour
One
of
Jeff’s
most
provocative
insights
was
his
prediction
that
AI
would
disrupt
—
not
jobs
—
but
the
billable
hour.
“It’s
going
to
make
us
so
efficient,”
Jeff
explained,
“that
we
won’t
be
able
to
justify
the
same
billable
hours.”
The
result?
A
shift
toward
value-based
billing
models,
where
lawyers
charge
based
on
the
outcomes
and
value
they
provide
rather
than
the
time
they
spend.
AI
In
The
Courts:
Moving
At
The
Speed
Of
Trust
The
discussion
also
touched
on
the
courts’
relationship
with
AI.
While
courts
have
embraced
some
technological
advances
(e.g.,
video
hearings
during
COVID-19),
Jeff
acknowledged
they
remain
slow
to
adopt
AI.
Concerns
about
deep
fakes
and
evidentiary
reliability
loom
large,
particularly
in
expedited
decisions
like
TROs.
Jeff
suggested
the
legal
system
would
likely
develop
authentication
processes
for
digital
evidence,
akin
to
notary
stamps
for
signatures.
However,
he
warned
of
growing
pains
as
courts
and
lawyers
adapt.
Final
Thoughts:
The
Least-Painful
Path
To
AI
Adoption
As
we
wrapped
up,
Jeff
offered
practical
advice
for
lawyers
at
any
stage
of
AI
adoption:
“Figure
out
one
area
where
you
can
incorporate
AI
with
minimal
investment
and
pain,”
he
urged.
Whether
it’s
research
tools
like
CoCounsel
or
back-office
applications
for
marketing
and
billing,
the
key
is
to
start
small,
experiment
safely,
and
focus
on
adding
value
for
clients.
Key
Takeaways
-
Document
Retention.
Develop
clear
policies
to
limit
hoarding
and
mitigate
risk. -
AI
Policies.
Provide
clear
guidelines,
encourage
responsible
use,
and
prioritize
education. -
Ethics.
Competence
now
includes
AI
literacy,
and
transparency
with
clients
is
non-negotiable. -
Billing
Evolution.
AI’s
efficiency
will
drive
a
shift
toward
value-based
billing. -
Court
Challenges.
Authentication
and
reliability
concerns
will
slow
AI’s
adoption
in
the
judiciary.
The
Bottom
Line
AI
is
here
to
stay,
and
it’s
already
reshaping
the
legal
profession.
The
lawyers
and
firms
that
succeed
will
be
those
who
embrace
this
transformation
thoughtfully,
ethically,
and
with
an
eye
toward
adding
real
value
—
for
clients,
colleagues,
and
the
courts.
Olga
V.
Mack
is
a
Fellow
at
CodeX,
The
Stanford
Center
for
Legal
Informatics,
and
a
Generative
AI
Editor
at
law.MIT.
Olga
embraces
legal
innovation
and
had
dedicated
her
career
to
improving
and
shaping
the
future
of
law.
She
is
convinced
that
the
legal
profession
will
emerge
even
stronger,
more
resilient,
and
more
inclusive
than
before
by
embracing
technology.
Olga
is
also
an
award-winning
general
counsel,
operations
professional,
startup
advisor,
public
speaker,
adjunct
professor,
and
entrepreneur.
She
authored Get
on
Board:
Earning
Your
Ticket
to
a
Corporate
Board
Seat, Fundamentals
of
Smart
Contract
Security,
and Blockchain
Value:
Transforming
Business
Models,
Society,
and
Communities. She
is
working
on
three
books:
Visual
IQ
for
Lawyers
(ABA
2024), The
Rise
of
Product
Lawyers:
An
Analytical
Framework
to
Systematically
Advise
Your
Clients
Throughout
the
Product
Lifecycle
(Globe
Law
and
Business
2024),
and
Legal
Operations
in
the
Age
of
AI
and
Data
(Globe
Law
and
Business
2024).
You
can
follow
Olga
on
LinkedIn
and
Twitter
@olgavmack.