Colorado policy could shield AI from complaints regarding unauthorized practice of law
Does using artificial intelligence for legal help constitute the unauthorized practice of law? Lawyers in Colorado are saying no and taking novel approaches to protect the developers of AI tools that aim to expand access to legal services.
In September, the Colorado Office of Attorney Regulation Counsel adopted a first-of-its-kind “nonprosecution policy” that deprioritizes the UPL prosecution of developers of legal-help technology tools.
According to Jessica Yates, the attorney regulation counsel for the Colorado Supreme Court, the policy recognizes that developers are often nonlawyers who still can deliver vital legal assistance to low- and moderate-income members of the public.
“Many of us have become aware over time of technological developments that would potentially provide some access that had not been there previously or hadn’t been there as easily,” says Yates, a member of the Colorado Supreme Court’s Advisory Committee on the Practice of Law subcommittee that developed the policy.
“And we started talking about, well, can we change the definition of what it means to practice law and what is considered the unauthorized practice of law, so that companies that are interested in developing technology-based tools could do so without fear of regulatory action or ultimately being enjoined from developing those tools?” Yates adds.
“Many of us have become aware over time of technological developments that would potentially provide some access that had not been there previously or hadn’t been there as easily,” says Jessica Yates, the attorney regulation counsel for the Colorado Supreme Court. (Photo courtesy of the Colorado Office of Attorney Regulation Counsel)
The subcommittee’s focus then turned to the nonprosecution policy, which initially will be in place for three years, so that the state can evaluate whether it creates more space for innovation and benefits consumers who want to use AI for legal guidance, Yates says. It includes specific safeguards, including that developers must be supervised by lawyers and clearly disclose that they are not lawyers.
“If you look at this policy, it really is designed to help the individual who is representing themselves,” she says. “They are pro se in a case, and they are working to try to resolve a dispute that maybe is with their landlord or with an insurance company.”
Jessica Bednarz, the director of legal services and the profession at the Institute for the Advancement of the American Legal System at the University of Denver, also was a member of the UPL and AI subcommittee. She notes that Colorado’s nonprosecution policy—and others like it in the future—can provide clarity to developers of tools that already are successfully serving people with legal needs.
As one example, she points to Courtroom5, a platform that uses AI to help people represent themselves in court. According to a recent report from the IAALS on how to regulate the use of AI in the delivery of legal services, it has helped tens of thousands of people.
“These legal tech entrepreneurs are a really important piece of expanding the legal service delivery ecosystem,” Bednarz says. “We really need them as part of that in order to close the justice gap.”
The IAALS is partnering with the Duke Center on Law & Technology at the Duke University School of Law to develop a toolkit for other states that are interested in implementing nonprosecution policies, Bednarz adds.
(Image from Shutterstock)
Related article from ABAJournal.com: OpenAI sued for practicing law without a licenseA similar yet different approach
Lucian Pera, a past chair of the ABA Center for Professional Responsibility and a member of the New York City Bar Association’s Presidential Task Force on Artificial Intelligence and Digital Technologies, has written about how states can follow Texas’ approach to remove uncertainty around AI for legal use.
That state’s law came about after UPL charges were brought against a software company in the late 1990s. Parsons Technology, the company at the center of the case, offered legal forms and instructions on how to use them, which a district court said violated the state’s UPL statute. But while the appeal was pending, the Texas legislature amended the statute to exclude computer software from the definition of UPL, as long as products clearly said they were not a substitute for an attorney.
According to Pera, it’s simple—AI isn’t UPL. In an article published in the ABA Law Practice Division’s magazine in September, he pointed out that “legal advice” must be provided by lawyers, but “legal information” can be dispensed by anyone. Or, in this case, anything.
“But there’s a lot of uncertainty on the part of entrepreneurs, businesspeople, etc., about it, and you could remove that very, very serious chill on their work by providing almost a safe harbor,” says Pera, a partner at Adams and Reese in Memphis, Tennessee.
Pera suggests that states could pass a law that clearly exempts software or apps that offer legal help from UPL prosecution. He notes that it could include some guardrails, such as requiring developers to inform clients that their services are not confidential and do not constitute an attorney-client relationship.
See also:
The legal profession cannot litigate its way out of technological change
Are more clients turning to artificial intelligence for legal advice?
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