AI in Estate Planning: Reading the Law, and What That Means?

Highlighting the one task we cannot jettison

Table of Contents

1. Where We Left Off

2. What is the Law? 

3. A Quick Exercise

4. Conclusion

Where We Left Off

In the prior article, I mentioned that the advance of AI can seem cold and emotionless.  This article series is designed to not just tackle the technical, but also the emotional, side of AI adoption.  My goal is to recognize your humanity in a world that seems to emphasize being less human. 

In this vein, we are told that AI won’t replace us but instead that attorneys using AI will, indeed, replace us.  But, I have a different caveat for this:

Attorneys who actually use AI professionally, and correctly, will replace those attorneys who use it to take too many shortcuts. 

I believe it is just as easy to get your clock cleaned if you use AI to take shortcuts where no shortcuts can, or should, be taken.  And, while I mentioned last time the emotional problem of AI challenging our identities as attorneys, there are some areas where our core identities cannot be replaced.  What is this core value?

Our ability and willingness to actually read the law.

Yes, that’s right.  Love it or hate it, as an attorney, you have to read the law.  While this seems logically over-simplified, I would venture to guess that the emotional impact of this statement is much more profound.  (After all, if your gut response to my statement was to discount it or get angry, perhaps this indicates something deeper that you are either unable or unwilling to address and if so, I remind you that I am just the messenger.)

But, if we abandon our emotional response, we do find interesting issues.  We see attorneys being sanctioned for citing cases that were hallucinated by AI, in both New York and Colorado.  Why?  Because they took shortcuts to actually reading the law. 

Reading the law may seem old-fashioned, but my response is to question how one can be an attorney or counselor without actually doing so?  And, I know that the classic economic structure of associate leveraging leads to situations where supervising attorneys end up having the associates read and summarize the law for them, but there is still a duty to supervise subordinate attorneys, support staff, and even AI under ABA Model Rules 5.1, 5.3, and 5.7.  And, guess what is that the core of this duty to supervise?  Reading the law to check their work. 

I was a fairly good law student.  But, where I got in trouble during law school was attempting to bypass the process of actually reading the law.  I took shortcuts by using outlines, study aids, and other materials that were intended as supplements.  But, instead of using supplements for their intended purpose, I used them as my primary reading material.  And, as a result, I did not perform as well on some exams.  While it again seems trite, perhaps the greatest lesson I took from law school was that I needed to read the law.  Looking back, my best courses were those where I chose to buckle down and read the law.  (Say what you will about law school’s supposed inability to prepare practitioners, but this is one area where things have remained fairly consistent – learning how to read the law, by repetition and application.) 

This is not, however, intended to be a gloom and doom conclusion.  In fact, I believe you can find great hope and comfort in perhaps the biggest foundational value to be found in the entire AI landscape – that it cannot, or should not, be used to read the law for you.  And, I believe you will easily maintain an edge over those who refuse to do so.  It is up to you how you choose to structure your practice from there. 

What is the Law? 

Now, we all know that the law comes in many forms.  To name a few, we have:

• basic statutory law, found in federal, state, and municipal codes;

• the classic case law that we were all required to read during law school;

• regulations issued by state and federal agencies;

• administrative rulings from those same agencies;

• model rules and laws, that are often adopted with modifications by states; and

• bills and proposals that have not yet been turned into law, but could in the future. 

This is a lot to read if you want to keep up to speed.

Now, I know some of you are going to latch on to case law and precedent as perhaps the “best” use case of AI and, for that reason, the area you don’t think you should still have to read.  After all, we often lack time to read those lengthy cases that get published.  We may rely on CLE programs, or thought leaders (such as yours truly), to review and summarize cases.  We may ask associates to do this work for us and bring us up to speed. 

I am not asking you to abandon this. 

But, pursuant to ABA Model Rule 5.1, we do have a duty of independent judgment.  Inherent in that duty of independent judgment is nuance.  We get to call the shots on determining what law might be applicable to our clients’ situations, versus what law is not applicable.  This is where AI comes in.  The problem is in using AI to summarize law that is clearly applicable to our clients without reading it.  Getting there might require us to digest a ton of information. 

In this light, I believe the appropriate use of AI is to serve as a filter.  It helps you determine what law you should actually be reading.  From there, it is up to you to read and apply that law.  It is also up to you to make the independent judgment call as to whether or not the law is applicable. 

A Quick Exercise

In each article in this series, I will use a themed exercise to help you explore AI.  This exercise is optional, but it will serve as an immense value-add for those who actually participate.  My goal is to inspire action, and not just ideas. 

That being said, change is perhaps the scariest thing in the world for an attorney.  The longer you have been in practice, the more difficult change becomes.  And, sometimes our resistance to taking action (such as a brief AI exercise) is that it forces us to confront the reality we have been hiding from - that change is required.  In other words, you may fear that by doing the exercise, you will be forced to take personal ownership and responsibility with respect to AI.  I bring this up not to judge you, but instead to hopefully convey that I understand where you are coming from. It is OK to not feel ready or willing, and I will be here if and when you do feel ready and willing.