Document Type

Article

Publication Date

2022

Publication Information

97 North Dakota Law Review 185 (2022)

Abstract

Technology, particularly that powered by Artificial Intelligence (AI), is disrupting the legal profession. In the coming years, lawyers who do not understand technology will face both ethical and professional risks. This year, the duty of technological competence marks its tenth anniversary. While lawyers are still learning what the duty means and what it will mean in the future, one thing is certain: those who ignore it could find themselves at risk of being on the wrong side of an ethics violation.

However, even without that regulatory obligation, lawyers who continue to ignore the current technological revolution put themselves at risk of being replaced – if not by robots, then certainly by those lawyers who are using technology to drastically increase their efficiency, provide better service to clients, and cut costs. As Suffolk University Law Dean Andrew Perlman has written, “Technology is playing an ever more important role, and lawyers who fail to keep abreast of new developments face a heightened risk of discipline or malpractice as well as formidable new challenges in an increasingly crowded and competitive legal marketplace.”

As those charged with educating tomorrow’s lawyers, law schools must provide their students with all of the tools they will need to succeed in their practice. In today’s world, this means educating law students to understand and use technology, particularly AI-powered technology. But since technology is constantly changing, it can be challenging to know precisely what that means, and given the rapid advancements and explosion in products on the market, it would likely be impossible for a law school to teach a given student all they might come across. Moreover, even if they could, those skills could be outdated within just a few short years.

Instead, law schools must teach students about both the current technologies and those in the pipeline – those we may not even have imagined yet. Students must be prepared to use current technologies and anticipate and learn about new ones as they arise. This requires a new kind of pedagogy that is complementary to traditional legal pedagogy and builds upon it, preparing students for the skill of continuing their technical education long after they leave law school.

This article describes the ethical and professional issues that will increasingly face lawyers as the AI revolution rolls on. Law schools must face these issues both because their students will be required to have this knowledge to practice ethically and because their students may eventually find themselves unemployable without it. In Part II of this article, I argue that the duty of technological competence, when read with other technology-related precedent and rules, implies not only the duty to understand the technology that one might use in practice but, under certain circumstances, an affirmative duty to explore and use new legal technology. In Part III of this article, I describe how technology is disrupting the legal profession and the existential risks that lawyers face if they refuse to adapt. I also provide specific examples of AI-powered technology that already exists, including some that, just a few years ago – let alone a generation ago – would have seemed unimaginable to most lawyers. In Part IV, I shift gears to describe the pedagogical model outlined in Robot-Proof and provide a real-world example of how I applied it to a new course in legal technology at the University of North Dakota School of Law. Finally, I conclude with a call to action for legal educators to move more quickly into the future, before it leaves both them and their students behind.

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