How to Maintain the Ethical Use of AI in Personal Injury Matters

Ethical concerns are rightly of primary concern for attorneys using AI tools in their practice. Key among them are data privacy, algorithmic bias, and client confidentiality. Best practices are essential to navigating these challenges.

AI tools can assist with analyzing medical records, accident reports, photographs, deposition transcripts, and other case-related documents. These tools save time without sacrificing comprehensive evaluation. Because these tools excel at mastering repetitive, time-consuming functions in fractions of the time it would take the human mind, they appeal to legal teams. But all this power requires careful attention to detail and ensuring data privacy and client confidentiality are maintained and algorithm bias is avoided.

Algorithm Bias in AI

AI bias, also called machine learning bias or algorithm bias, is the appearance of biased results because of human biases that skew the original training data or AI algorithm. This problem can lead to distorted outputs and potentially harmful results.

Avoiding AI bias requires prioritizing diverse data collection, ensuring thorough testing across different demographics, monitoring the algorithm, using diverse development teams, and actively identifying potential biases in the data and algorithms used to train the AI system. This includes practicing responsible dataset development and establishing policies and practices that enable responsible algorithm development.

Insurance companies command significant resources, including their own use of big data regarding jury verdicts, settlement ranges, and medical data. But the proliferation of widely-available AI tools can help to level the playing field for the Plaintiff’s lawyer. Personal injury attorneys must also be wary of insurance company use of AI bias. In offering an injury settlement, the Insurance algorithm may consistently undervalue claims filed by individuals from certain demographic groups due to biased data used in its training. Because this could lead to inherently under-valued settlement offers, attorneys should remain vigilant of bias as it relates to their use of AI as well as when encountering its use by others as they represent clients.

Collecting data from settlement offers for client sets can provide support for claims that the settlement offer is artificially low. But attorneys must also be prepared to file lawsuits and avail themselves of the jury system, where AI tools cannot control how a jury may value a case.

Protecting Client Data

AI data privacy is a significant concern. Data collection often involves huge amounts of data, and data breaches do occur, which can have severe consequences for clients and organizations. AI systems are only as secure as the data they handle, and vulnerabilities could result in personal information being accessed by hackers and malicious actors. To protect clients' data from unauthorized access, robust security measures must be used. To protect client data when using AI, a law firm must carefully vet its AI vendors, ensure that only necessary client data is being handled, implement strong data encryption measures, employ dedicated private servers for sensitive information, clearly describe the use of client data within client agreements, and educate lawyers on all ethical AI practices.

Client Confidentiality Protections

The American Bar Association has offered a formal opinion defining the attorney’s duty to protect client confidentiality, including the following provisions:

• Providing competent representation
• Keeping client information confidential
• Communicating with a client utilizing secure means
• Properly supervising subordinates and assistants
• Charging reasonable fees in relation to using AI tools

Lawyers must continue to exercise their own skill and judgment regarding legal work. They should not use AI alone to offer legal advice or take care of tasks that require legal knowledge. When an attorney inputs information related to their representation of a client into an AI tool, they should carefully consider the risk that unauthorized people, both within the firm as well as externally, may get access to the information. Data segregation and limiting access are critical components of any AI policy within a personal injury law firm.

Under certain circumstances, a lawyer may also need to disclose the use of AI to a client or obtain the client’s consent to use it. This underscores the importance of employing uniform guidelines for the use of the technologies in practice.

These ethical considerations are merely an extension of the basic ethical obligations that apply to the practice of law. The introduction of AI has enhanced efficiency in building cases and executing legal services, but client confidentiality and ethical considerations remain at the heart of good legal representation.