Tuesday, I wrote about the unique value eDiscovery professionals offer in the brave new world of artificial intelligence across the entire legal industry. I want to elaborate on what I mean in the context of a resolution published by the American Bar Association and provide further insight on the specific skills eDiscovery professionals have that make them indispensable to law firms and legal departments considering broader uses of AI.

I’ll start with a confession: Despite practicing law for more than 20 years, I knew very little about American Bar Association (ABA) Resolutions and their significance until I stumbled upon one recently providing guidelines on artificial intelligence.

I think of the ABA mostly in connection with the Model Rules of Professional Conduct for lawyers; indeed, artificial intelligence has a wide range of ethical implications as noted by courts and commentators. The ABA develops policy on a range of legislative and national issues, and the “Resolution with Report and Recommendation” process is the method for establishing its official positions.

Approval of a resolution by the ABA’s House of Delegates at the ABA’s annual or mid-year meeting is the normal means of establishing ABA policy. The resolution itself succinctly states the policy proposed for adoption. An accompanying report provides the background and rationale for adoption. A report and recommendation document normally originates in an ABA section committee, is prepared in a coordinated, collaborated effort among interested section committees and ABA entities, and must be approved by the section’s council. Following the council’s approval, the report and recommendation document is submitted to the ABA’s House of Delegates (like the ABA’s Congress) for approval.

Once the ABA policy has been adopted, the section, in coordination with the ABA’s Governmental Affairs Office, can lobby appropriate entities for its implementation. ABA policy can also be expressed in amicus briefs with the approval of the ABA’s Standing Committee on Amicus Curiae Briefs and the Board of Governors.

Given the significant ethical implications of AI, the vast range of state and federal AI laws currently under consideration and regulatory implications caused by the disruptive power of this technology across multiple industries, ABA artificial intelligence policies seem particularly relevant and important to watch.

In 2019, more than three years before the release of ChatGPT, the ABA passed its Resolution 112 on Artificial Intelligence. Resolution 112 offers a framework that will look familiar to many eDiscovery professionals accustomed to working with advanced technology and vendors:

[T]he American Bar Association urges courts and lawyers to address the emerging ethical and legal issues related to the usage of artificial intelligence (“AI”) in the practice of law including: (1) bias, explainability, and transparency of automated decisions made by AI; (2) ethical and beneficial usage of AI; and (3) controls and oversight of AI and the vendors that provide AI.

The ABA report accompanying Resolution 112 reads like an early blueprint and gives eDiscovery professionals the background to establish credentials for significant involvement in their organization’s artificial intelligence efforts.

The ABA specifically recognizes the foundational relevance of electronic discovery and predictive coding technology to current AI technology issues. EDiscovery professionals commonly use AI technology to handle engagements much broader than traditional civil litigation, like contract management and analysis, due diligence reviews, legal research, and what the report calls “wrong-doing” detection in company records (the report even references the infamous Enron emails)!

Ethical Considerations

The ABA report identifies and discusses several ethical rules applicable to the use of artificial intelligence. Although the ABA Model Rules of Professional Conduct and their state equivalents apply primarily to lawyers, paraprofessionals are also implicated to the extent lawyers have a duty to supervise (which extends to non-humans in the case of AI). The text of ABA Model Rule 5.3 changed in 2012 to clarify that the duty to supervise encompasses non-lawyer “assistance” whether by a human “assistant” or the work of AI.

Paraprofessionals managing eDiscovery work, including complex document discovery, investigations, and transactional due diligence, are well trained in legal project management and the documentation of process to defend the integrity of discovery or subpoena responses. They understand the dynamics of working under the supervision of attorneys who rely on them to properly communicate and modify protocol, protect privileges and client confidentiality, manage teams, and escalate issues appropriately.

When I directed an eDiscovery department at an AmLaw 100 law firm, the team’s eDiscovery manager and technical specialists were indispensable to the daily operations and success of the business; eDiscovery professionals can play the same critical role in the viability and growth of law firm and legal department services leveraging new artificial intelligence technology on a broader scale.

Next time, I’ll explore how ABA Resolution 112 provides a blueprint for eDiscovery professionals to expand into new AI roles by leveraging their skills and expertise in database administration, process and protocol development and vendor relationship management.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.