Your litigation analytical tool says your win rate for summary judgement motions in class action employment discrimination cases is ranked the best in your local jurisdiction according to the database used. Forget the problem with using PACER data for litigation analytics, possible modeling error or possible bias embedded in the tool. Can you communicate this applied AI output to a client or potential client? Are you creating an “unjustified expectation” that your client or potential client will achieve the same result for your next client matter?
According to the ABA’s Model Rules of Professional Conduct Rule 7.1, you are probably creating an “unjustified expectation.” However you may be required to use that information under Model Rule 1.1 because that rule creates a duty of technological competence. This tension between Model Rule 7.1 and Model Rule 1.1 is just begining to be played out.
For more, see Roy Strom’s The Algorithm Says You’ll Win the Case. What Do You Say? US Law Week’s Big Law Business column for August 5, 2019. See also Melissa Heelan Stanzione, Courts, Lawyers Must Address AI Ethics, ABA Proposal Says, Bloomberg Law, August 6, 2019.