Fighting the bots is the new attorney niche
The artificial intelligence legal field is rapidly expanding, says Bradley Merrill Thompson, a member and the AI practice leader at Epstein Becker & Green. As of 2023, the law firm had been hired to file more than 200 AI-related lawsuits. “But I can tell you that number has grown substantially since then,” he says. (Photo illustration by Sara Wadford/ABA Journal)
Updated: From lookalike photos to hallucination errors to copyright infringement, the rise of lawsuits against generative artificial intelligence tools reveals a growing frustration with our silicon assistants.
Naturally, lawyers are here to help, and some firms are hiring AI-focused attorneys—a new niche—to combat illegal AI activity such as biases and deepfakes.
Lawsuits against AI are snowballing, and federal AI legislation most likely won’t arrive until after the presidential election. But more than a dozen states already have enacted laws to regulate AI, and more are expected in the coming months, according to BCLP, a law firm that monitors AI laws. For example, Connecticut senators passed a bill in April requiring watermarks on AI-generated images in an attempt to curb deepfakes and misleading AI-generated media in political campaigns.
The laws and lawsuits are far-reaching. For instance, a job applicant is suing HR software firm Workday in the U.S. District Court for the Northern District of California alleging that it is using AI software to screen job applicants on the basis of race, gender or disability in violation of federal anti-bias laws. Last month, the U.S. Equal Employment Opportunity Commission filed an amicus brief with the court recommending that the lawsuit move forward and opining that Workday qualifies as an employment agency, indirect employer or agent of employers that makes it subject to federal anti-bias laws.
The AI legal field is rapidly expanding, says Bradley Merrill Thompson, a member and the AI practice leader at Epstein Becker & Green. As of 2023, the firm had been hired to file more than 200 AI-related legal matters.
“But I can tell you that number has grown substantially since then,” he says, adding that the biggest focus is in health care and labor/employment. “Some of the largest companies are investing heavily in this space.”
To successfully handle those AI cases, attorneys specializing in artificial intelligence and firms are creating departments or practice groups to handle them. At Epstein Becker & Green, 60 attorneys have been assigned to its AI group, which covers everything from intellectual property to corporate transactions. Thompson says the firm has been proactive in getting its attorneys qualified, sending some back to school for additional degrees and having others obtain certifications to help them practice AI law.
Thompson returned to school after 33 years to obtain a master’s in applied data science from the University of Michigan, graduating in 2022. Others at the firm earned graduate certificates in health care informatics or took courses at local universities.
In addition to the attorneys, Epstein Becker & Green also works with a team of data scientists and social scientists via EBG Advisors, a Washington, D.C.-based affiliate consultancy.
“We work as a team, so we bring in all of those sets of expertise together to solve problems,” Thompson says.
Meanwhile, Gamma Law in San Francisco has a team of three lawyers and one legal assistant to work on AI-related law, according to David Hoppe, the founder and managing partner of the firm. Clients started approaching Gamma about AI-related matters about two years ago because it has a significant practice in content-based businesses such as video games and entertainment. This focus leads to legal work relating to licensing and copyright concerns, Hoppe says.
Skills needed
While a single attorney won’t have all the skills necessary to conquer AI, the strongest lawyers are comfortable with the technology and have a willingness to continue updating their skills because the technology is constantly changing.
James Gatto, the AI team leader for the Washington, D.C. office of Sheppard Mullin, has an electrical engineering degree with a minor in physics, and the firm has a number of former software developers on its staff. But Gatto says that while a tech background is very helpful, it’s not essential.
“Given that the range of legal issues and industries impacted, our team approach draws on attorneys across all of our legal practices and industry groups,” he says. “As long as there is one tech person on the team, they can sort through the tech issues and distill for the team.”
In the future, Gatto says, key areas including IP, data protection and cybersecurity will be important.
Sheppard Mullin, a global firm with more than 1,000 attorneys in 16 offices, offers a range of AI services. It provides internal education to clients on the array of legal issues that can arise with AI; developing policies for employee use of AI; training AI models with a focus on ensuring rights to use the training data; minimizing legal issues when using AI code generators; and creating policies for managing vendors that use AI for company deliverables. It also does a lot of patent, licensing and other transactional work where AI is a significant component.
And while some law firms are jumping on board to focus on AI, it’s really just the beginning; the field is expected to explode in the coming months and years.
“This is the Fourth Industrial Revolution, but many people do not see that yet,” Gatto says. “Just as with the First Industrial Revolution, where people left farm jobs and living in the country for factory jobs in the cities, AI will cause a huge shift in jobs.”
Updated May 7 at 2:33 p.m. to correct a last name reference of Bradley Merrill Thompson and to correctly state that Epstein Becker & Green had been hired to file more than 200 AI-related legal matters.
