The Sedona Conference on AI and the Law, Part 2: AI and IP Law

During The Sedona Conference on AI and the Law, Part 2: AI and IP Law, Director Lestin L. Kenton, Jr. led Session 3, “Facing AI’s Validity, Reliability, Bias, and Evidential Challenges,” and General Counsel Elham Dehbozorgi led Session 4, “Professional Responsibility Issues Raised by the Use of AI.” 

Facing AI’s Validity, Reliability, Bias, and Evidential Challenges Overview

AI, like any technical tool or method, requires evaluation to determine whether it works properly and is appropriate for use in particular settings. However, some AI applications have come under scrutiny for allegedly incorporating biases in their data and algorithms, producing undesirable, inaccurate, or inconsistent results. The performance of AI applications can be observed and measured, and if addressed properly, these applications can be improved or better managed. The dialogue leaders discussed the performance of AI tools used for various legal functions, how we access their efficacy, and the challenges that AI presents to admissibility under Rule 104 of the Federal Rules of Evidence, undue prejudice under Rule 403, and authentication under Rule 901.

Professional Responsibility Issues Raised by the Use of AI Overview

The use of AI by law firms, corporate legal departments, law enforcement, regulatory agencies, and the courts raises a host of ethical concerns, some of which are squarely governed by the Model Rules of Professional Responsibility. Rule 1.1 requires that lawyers understand the technologies they are using or involved in their cases, Rule 1.6 places a duty of confidentiality when using client data to train or query an AI application, Rules 3.3 and 3.4 require candor to the court and fairness to opposing parties when using AI to develop argument or evidence, Rules 5.1 through 5.3 require supervision of partners, associates, and assistants who may be using AI, and Rule 5.5 prohibits the unauthorized practice of law, which may be facilitated by chatbots. The dialogue leaders analyzed these rules and others to make recommendations for using AI ethically in the practice of law, including the patent application, examination, and challenge or enforcement processes.