Bench & Bar

JUL 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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19 BENCH & BAR | representation through retainer agreements where, for example, the lawyer may agree to draft a complaint, petition, or brief, but not agree to appear in court on behalf of the client. 2 Tasks traditionally associated with legal services are also being automated, as is the case with popular online self-help legal products that ask users a series of questions in order to prepare documents, such as wills, trusts, or petitions for disso- lution of marriage. 3 Tasks associated with legal services are also being outsourced to low-cost providers, as is the case with some document review projects where a firm may outsource their document review to less expensive domestic or foreign labor markets. 4 These de velopments, whic h al low non-lawyers to perform tasks traditionally associated with legal practice, have made it more challenging to define the practice of law and identify the unauthorized practice of law. e practice of law as defined by Kentucky Rules of Professional Conduct in SCR 3.020 is helpful because it focuses less on specific tasks and places emphasis on the application of legal knowledge or legal advice, defining the practice of law as "any service rendered involving legal knowledge or legal advice, whether of rep- resentation, counsel, or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services…" Even with a definition focused less on tasks traditionally performed by a lawyer than on the application of legal knowledge, it is easy to conceive of a situation where the author of a chatbot could step over the line of pro- viding legal information and could create a chatbot that engages in the practice of law. ese risks will increase when the artificial intelligence that powers chatbots advances to the point where a chatbot can interact with a user's natural language questions, determine the user's set of facts through a series of responses to fixed questions, and recommend a course of action informed by the application of the law to the user's unique set of facts. For a non-lawyer, this could mean the creator of the chatbot engaged in the unauthorized practice of law, a felony in some jurisdictions and a Class B misdemeanor in Kentucky. 5 For the lawyer, it is possible a lawyer-client rela- tionship could be imputed to exist between the author of the chatbot and the user, since according to Kentucky Bar Ethics Opinion KBA E-316, "an attorney client relation- ship is not dependent upon payment of fees, nor execution of a formal contact… In addition, the relationship may be estab- lished by the client's reasonable and detrimental reliance on the lawyer to provide legal services." 6 e imputation of a lawyer- client relationship between the author of a chatbot and its users could be disastrous, since a law chatbot may interact with thousands of users. It is also pos- sible that prospective clients could interact with a lawyer's chatbot in an attempt to deliber- ately provide significantly harmful information that creates a conflict of inter- est that, in accordance with Kentucky Rule of Professional Conduct SCR 3.130(1.18), would prevent the attorney from representing a party with an adverse interest in the same or a substantially related matter without the consent of both parties to the controversy. Lawyers can strive to avoid these thorny issues by being careful to provide legal information, rather than legal advice, through their chatbots. is is the approach I have taken with the Law Library of Con- gress Chatbot. e first prompt makes it clear that the chatbot cannot provide legal advice, only legal information, and the chatbot never applies the law to the facts of a client's case to recommend a course of action. is approach can help empower the user with authoritative information before he or she makes contact with an attorney, allowing the client to become an informed consumer of legal services. Chatbots are a novel technology that could provide lawyers the opportunity to educate and empower potential clients in a new communication platform, but this platform must be used with caution, lest the lawyer unwittingly find his or herself subject to unanticipated ethical obliga- tions with thousands of users. Be sure to contact the Kentucky Bar ethics hotline for authoritative information concerning professional ethics issues related to chatbots and other emerging legal practice technologies. ENDNOTES 1. Verto Analytics. Most popular mobile social media networking apps in the United States as of February 2018, by monthly users (in millions), Statista (2018), https://www.statista.com/ statistics/248074/most-popular-us-social- networking-apps-ranked-by-audience/ (last visited May 23, 2018). 2. David L. Hudson, Jr., What ethics issues to consider when offering unbundled legal services, American Bar Association Journal ( June, 2013). http://www.abajournal.com/magazine/article/ lawyers_offering_unbundled_legal_services_ must_consider_the_ethics_issues/news/article/ judges_and_the_administrative_state/. 3. Robert Ambrogi, Latest legal victory has LegalZoom poised for growth, American Bar As- sociation Journal (August, 2014), http://www. abajournal.com/magazine/article/latest_legal_ victory_has_legalzoom_poised_for_growth/. 4. Jason Krause, Can legal service outsourcing get adopted beyond document review?, American Bar Association Journal ( July, 2017), http://www. abajournal.com/magazine/article/legal_ser- vice_outsourcing. 5. Ky. Rev. Stat. Ann. § 524.130 (LexisNexis 2014). 6. Kentucky Bar Ethics Opinion KBA E-316 (1987). ABOUT THE AUTHOR ROBERT BRAMMER is a senior legal information specialist at the Law Library of Congress and the creator of the Law Library of Congress Chatbot (https://www.facebook.com/ messages/t/lawlibraryofcongress). Brammer received a Bachelor's degree in political science from the Uni- versity of Kentucky, a law degree from Wayne State University, and a Master's in Information Science from Florida State University. He is licensed to practice law in Kentucky and Florida. Any opin- ions expressed in this article are his own and do not necessarily represent the views of the Law Library of Congress.

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