Top Takeaways: 2023 Hinshaw Legal Malpractice and Risk Management Conference

LMICK’s Courtney Risk attended the 2023 Hinshaw Legal Malpractice and Risk Management Conference. The conference provides CLE programming focused on legal malpractice trends and issues which equips us with the best information for our insureds. Here are the top takeaways and look for additional content on these issues from us in the near future.

Inadvertent disclosures are a lawyer’s nightmare. The Alex Jones case provides multiple examples of what not to do. When receiving and sending discovery, lawyers must review the contents and ensure protected material is separated and not shared. For more about the Alex Jones mistakes, look for the LMICK session at the KBA Convention in June: Lawyer Mistakes Made for All to See: Learning Lessons from High Profile Cases.
ChatGPT needs to be on your radar. The artificial intelligence (AI)-powered natural language processing application can generate narrative passages with minimal input from the user. Apps like ChatGPT are considered unbounded, allowing it to continue to learn (but also often lacking controls over the accuracy of what it is learning). Much of the current concern is centered around student use of the app in educational settings to draft essays. However, it is conceivable that a lawyer could attempt to use the app to draft legal documents.

When Hinshaw lawyers asked ChatGPT if it can draft legal documents, the app described how it has the ability to quickly and effectively research legal issues as well as the required language skills to produce the documents. However, when asking ChatGPT if it should draft legal documents, the app acknowledged that: its access to information was only updated through 2021; it did not have access to subscription databases (like Westlaw); and, it lacked the analytical skills necessary to draft legal arguments. ChatGPT makes a pretty compelling argument why lawyers should not use these natural language processing applications, yet. Beyond the accuracy issues that would impact our duties of competence and diligence, there are significant issues of confidentiality and privilege surrounding the information entered into the system to develop the requested document. We are continuing to follow this trend and will bring more information to our insureds as this AI discussion develops.
Robots in court? ChatGPT was one of the applications used to fuel a now-unsuccessful attempt to use AI-powered robots in court. DoNotPay, a New York start-up, was planning its first court appearance on February 22^nd in California. The robot would have appeared with defendants in court on traffic ticket matters. The robot would be equipped with a microphone and speaker, informing the defendant what to say and providing legal advice in real time. However, after the company was contacted by several state bar associations—with at least one threatening criminal prosecution—the company decided not to appear. It is unlikely that this is the last we will hear about this developing technology.
Have you ever received a referral fee? Did you know that—in addition to remaining jointly liable—you also have ethical duties to ensure you make a referral to a competent lawyer. (SCR 3.130(1.5(e)), comment 7 states a referral should only be made to, “a lawyer whom the referring lawyer reasonably believes is competent to handle the matter.”) Take care to review the requirements of SCR 3.130(1.5(e)) prior to referring a case to be certain you are meeting your ethical obligations. You can also take a look at LMICK’s article on fee splitting for a good overview.
Lawyers need to make sure they have appropriate malpractice coverage limits for their practice in light of the general trend of increased litigation costs. It is a good idea to take a look at your limits each year and make sure your policy provides the coverage you need. LMICK offers a great resource on what to consider when choosing your limits.

We are excited to watch these and other trends and create great risk mitigation resources for our insureds this year! For questions, please contact Courtney Risk (risk@lmick.com).