I recently read a blog musing on the effects that new AI processes will have on the legal profession, which can be found here: http://nylawblog.typepad.com/suigeneris/2018/05/will-robots-replace-lawyers.html. While granting that there will be some unwanted transition costs in incorporating AI into the legal practice sphere, the author seems to conclude that these changes should be largely viewed as a good thing in that these new technologies will free lawyers from the uninteresting "mundane" work of simple drafting and filing and will provide new opportunities for creative and high-level specialized legal reasoning. I cannot disagree more with this sentiment.
Please understand, I am not a Luddite nor do I suppose that there is any realistic way of stopping this influx of new legal processes intent on "disrupting" the profession. Many of the technological changes that have been implemented into day-to-day legal processes have brought important improvements into the profession and have been to the advantage of both legal practitioners and clients (automated billing and case management software comes to mind). Nor am I unfamiliar with these new technologies and speaking purely out of a discomfort with change: in my own professional life much of my day is taken up with the reviewing and negotiation of SaaS contracts as to both scope and terms and conditions, a consideration of the developing legal landscape governing click-wraps, electronic signatures and filings, and the intricacies of privacy law and its effects on complex organization's security concerns. Furthermore, I am eagerly digesting the possibilities of blockchain methodologies and smart contracts as a means of providing efficiency and security in this new world of technologically driven contracts, and to top it off I work primarily within an enterprise electronic document system which tracks and controls the contract development process.
I am a Millennial and I have grown up surrounded by these technologies, I am comfortable with these technologies, and I have every expectation of continued technological development and change. However, as someone nearer to the beginning of my legal career than some, I urge the profession to consider not only the short term gains such technologies promise to provide but also the long term and unconsidered costs they will wreak on the profession.
The blog I linked to at the beginning of this post references that the costs of AI implementation will fall mainly on young and entry level attorneys, with more specialized and established attorneys likely to reap the majority of the gains. While I can see the appeal from the perspective of firm partners and share-holders, I urge them to think not only of the potential short-term profits, but also of the fiduciary responsibility they hold as members of the profession. Because, let's face it, no one (or very, very few) comes out of law school particularly skilled or even particularly competent in the practice of law. Certainly one gains an important introduction to the process of thinking like an attorney in the classroom, but the intricacies of filing, drafting, negotiation, addressing client concerns, and developing a sense of legal judgment (dare I say wisdom?) is something that can only be mastered with time, practice, and experience. And two summers of internships does not a good lawyer make! This is why the legal profession has traditionally been a teaching profession, and has placed such a high premium on mentor-ship and continuing education. It is precisely the so-called "mundane" work of the law--those countless hours spent proof-reading, error checking, filing, reviewing, and simple drafting--that create the habits of mind and ingrained sense of hard work and duty which eventually, over the course of years, create lawyers worthy of the name.
Furthermore, it is not merely the work performed but the "environment" in which the work is performed that develops these habits of mind and spirit. The reason law firms hire inexperienced fresh-from-school associates at such lower rates than they once did is that the "mundane" elements of the practice of law can now be more efficiently farmed out to project-based e-discovery firms and their ilk that hire young lawyers on a project by project basis for a fraction of the cost of a full time associate attorney. The result is that young attorneys, rather than having the opportunity to perform this sort of mundane work in an environment where they will also be exposed to established attorneys who, from time to time, may introduce them to more complex aspects of the practice of law which will allow them to grow into the more elite and specialized attorneys whose wisdom and experience will help the profession grow and develop, rather spend much of their early career toiling in a veritable sweat-shop among other underpaid and frustrated attorneys who are as capable and competent as their professional forebears, but who are deprived the opportunities that were once taken for granted as an important aspect of their professional development. I cannot stress this enough, young lawyers need the opportunities traditionally provided within a law firm or other organization to develop the personal relationships that will allow them to develop to their true potential. The result of this dearth of opportunity for mentorship is the creation of a more or less permanent underclass of attorneys who may never even be given the opportunity to develop into something more befitting their hard work and investment.
And this is only reviewing the landscape as it now stands. If AI processes continue to carve away at the roles traditionally filled by young attorneys still new to the profession, how in the world will they ever develop into highly skilled much less "elite" lawyers? What happens when the current crop of elite lawyers begin to retire and there are none to take their place but attorney's who have toiled in obscurity, those much needed mundane tasks and personal relationships previously used to develop their sense of what the law requires replaced by the impersonal whirring of machine processes? Will this be good for the profession when it comes to realize that it has systematically strangled out the next generation of expertise? Will this be good for the practice of law when there are no attorneys who have developed the second sense necessary to be successful in the courtroom or at the negotiation table? Will this be good for society at large when the only ones left to defend and represent the indigent are even more overworked and indifferent than many are now?
My answer is a definitive no. The legal profession has been in a crisis for many years, only dimly perceived by those who rose to the tops of the profession in a different age. The incorporation of AI processes into the profession further narrowing the field of opportunities open to young attorneys will only exacerbate this crisis in an industry which has lagged far behind whatever level of recovery has been experienced in other economic sectors since the financial collapse of 2008. It is time for the legal industry to stop blandly following the "disruptive" and short-sighted paradigm of the technology sectors. The law is a very old profession one of the values of which is stability in the face of a changing world. The reason that a profession exists, with its sometimes Byzantine regulatory strictures and expensive overhead, is to shield the practice of what is still heralded as a fiduciary calling from the pure onslaught of economic determinism.
It is time for the legal profession to step up and take notice of the catastrophe which they are creating for themselves and for the American people. It is time that the Bar think more critically and prudentially about the fact that a Robot, no matter how sophisticated, can never be a fiduciary and that the costs of incorporating such AI processes into the day-to-day practice of law may not be readily apparent until it is too late to reverse the damage that has been done.
I fear such a call will make little impact, and I will suffer the curse of Cassandra. I urge you, my fellow attorneys and fiduciaries, prove me wrong and show that this is a problem that is perceived and can be addressed--before it's too late.