By PBI Intern Emily Cardona
There is a crisis currently within the American justice system, a crisis in access to justice. Under the current approach, there are not enough lawyers to go around. Reform is needed to make the justice system more accessible. Incorporating artificial intelligence (“AI”) may be at least part of the solution. Recent developments in AI have flooded news outlets since systems like ChatGPT became available to the public. These systems have allowed students and organizations to achieve new levels of productivity and creativity. With this, it is still important to note that these systems have significant drawbacks to consider as they are still in their infancy stages.
Looking at this technological development through the lens of pro bono advocacy, we can see the potential for springboarding pro bono work to reach a higher percentage of underserved populations. In an article on the California Innocence Project, Chief Operating Officer and general counsel at Casetext, Laura Safdie, stated, “Pro bono work, especially legal aid, is just systemically resource-constrained…Usually, these organizations are really small, and they are run by extremely passionate, extremely effective lawyers who are human and have limited bandwidth. They have access to limited resources, and so that is necessarily constraining the reach of their work.” Recent advancements in AI could allow pro bono advocates to delegate portions of tasks like formulating emails, summarizing thousands of pages of briefs, and creating depositions to these AI systems, freeing up their time to do more. Many firms and organizations have already begun to utilize these technologies, and, though reviews are mixed (not surprising for a new technology), AI appears promising.
Advancements in AI have the potential to change the way we view pro bono legal work dramatically. Suffolk University Law School clinical fellow and adjunct professor Quinten Steenhuis says in a recent article published by Bloomberg Law, “When we are faced with an enormous injustice, it’s not enough to help a few individuals. We need to solve that injustice with efforts that match the scale of the problem. Nearly 90 percent of low-income Americans each year still go without any meaningful help for their legal needs.” Steenhuis believes that AI technologies are the answer to this problem and the solution that will fill the gap in legal representation for underserved groups. For 12 years, Steenuis worked as a legal aid attorney representing tenants threatened with losing their homes to eviction. Not satisfied with his progress, he developed software called the Massachusetts Defense for Eviction (MADE). He created MADE in 2019 to scale up the number of tenants he could assist each year. “Since then, MADE has helped more than 1,200 tenants each year—more than [he] helped in all [his] years working the old-fashioned way.”
Suffolk University Law School also has been exploring the power of ChatGPT. According to Steenhuis: “ChatGPT is excellent at summarizing and extracting relevant information from documents provided to it, translating legalese into plain English, and helping us quickly analyze thousands of existing court forms so we can identify ways forms can be simplified and made more user-friendly.”
Law firms nationwide are dipping their toes into this new style of work. In 2020, Chapman and Cutler LLP partnered with Legal Aid Chicago to produce an app to assist with sealing people’s past criminal records for cannabis possession at no cost. As of today, the app has helped thousands of people. Attorney and business owner Carolyn Elefant expresses in her MyShingle article that advancements in AI systems can perform portions of an attorney’s tasks in a fraction of the time it takes them to, possibly reducing how many hours attorneys can bill for their services.
Although AI systems, like ChatGPT, have introduced new and more efficient ways to interact with clients, these new systems come with limitations – not all of which are well understood. Steenhuis cautions “the tool is far from able to safely argue a motion, counsel a client, or even appeal a parking ticket. I’ve witnessed it make nonsense legal arguments and even invent citations from thin air.”
In light of acknowledged shortcomings associated with AI, it is clear that for the foreseeable future, the best deployment will include reliance on attorneys to oversee AI-performed work. However, in doing so, it is incumbent upon the justice system to avoid creating a tiered system of justice with the wealthiest taking full advantage of both attorneys and AI, while less affluent clients find themselves on lower rungs of legal services (e.g., attorney-only representation with no help from AI to perform exhaustive searches and speed document production; fee-based AI assistance only, with no lawyer oversight; or reliance on free, but unspecialized, on-line AI resources). Rashida Richardson, an assistant professor at Northeastern University School of Law, has expressed related concerns about implementing AI tools in the workplace and in pro bono legal spaces. In a recent Reuters article, she states, “Fundamentally, problems of access to justice are about deeper structural inequities, not access to technology…It’s critical to recognize that the development of AI technology is overwhelmingly unregulated and is driven by market forces, which categorically favor powerful, wealthy actors. After all, tech companies are not developing AI for free, and their interest is in creating a product attractive to those who can pay for it.”
It is true that some AI developers may license a portion of their product lines at no cost to public interest organizations. However, in considerable measure, these applications do not come free, and small legal aid organizations and firms might be unable to afford such tools, no matter how useful they can be. The cost barrier can significantly affect the use of AI technologies in pro bono representation. Rebecca Sandefur, a sociologist at Arizona State University, studied digital technologies in 2019 and found that more than 320 technologies assist non-lawyers with justice-related problems. Richardson remarked on Sandefur’s findings, “The applications don’t make a significant difference in terms of improving access to legal help for low-income and minority communities. Those groups were less likely to be able to use the tools due to fees charged, limited internet access, language or literacy barriers, and poor technology design.” The reality of AI technologies is that they are made for those who can afford them.
According to the Legal Services Corporation: “The big firms can purchase the AI software that is specifically trained on legal information and legal knowledge and has fewer hallucinations, whereas self-represented litigants will be using Bing and not have that same quality and have a better chance of running into [problems], and it could do more harm than good in that environment.” AI is a groundbreaking tool that has the potential to change the landscape of pro bono outreach altogether, but whether it helps or ultimately neglects or even tilts the legal system playing field against pro bono clientele is something only time will tell.
At present, technologies like Open AI and ChatGPT are meant to aid legal experts in pro bono work, not a replacement. These technologies offer a promising future for expanding pro bono legal services, and there are volunteer projects up and running that provide opportunities for attorneys and legal professionals to experience the crossroads where AI and pro bono advocacy meet. Suffolk Law’s volunteer-powered CourtFormsOnline.org allows Massachusetts attorneys to apply their skills. The California Innocence Project is another opportunity for California attorneys and legal professionals “that provides pro bono services and pays all of the investigation and litigation costs for all of our cases—more than 1,500 cases each year.” There are also resources to implement these programs into your current work; Harvey.AI, Logikcull, LawGeex, and DISCO are AI program systems that law firms and organizations have already implemented nationwide. Attorneys need not be proficient in any coding language to implement these tools into their practice; organizations like Code for America and Legal Hackers are equipped with the tools and expertise to embed these systems into a firm’s daily practice if they do not already have these resources readily available.
This is a new and exciting time for AI as we closely follow its progress and advancement. This tool has the potential to bring about significant change in the field of advocacy work and tip the scales of injustice permanently.