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BDO's Legal Tech Talk / Season 3

The Ethical Edge: Innovation in the Modern Law Firm

BDO's Legal Tech Talk · Season 3, Episode 15 · July 28, 2025 · 8,774-word transcript
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Host: Daniel Gold, BDO
Co-host: Eric Derk, BDO
Guest: Cari Sheehan, Taft

About this episode

Daniel Gold talks with Cari Sheehan, assistant general counsel at Taft and a former business law and ethics professor at the Kelley School of Business, about running ethics inside a law firm. Cari explains how she advises lawyers on generative AI without becoming the no police, which professional conduct rules AI touches most, why lawyers need to read the terms of service, how AI strains the billable hour, and what deepfakes mean for authenticating evidence.

Key takeaways

Full transcript

Transcript from BDO's published episode, edited for transcription errors. Speaker labels added by Gold Standard Leadership.

Show open

Welcome to BDO's Legal Tech Talk podcast. We're joined by judges and legal professionals to discuss emerging trends, regulatory updates, and the latest headlines. We'll provide tips to help your law firms and legal departments make the most out of legal technology.

I'm Daniel Gold, BDO principal and eDiscovery managed services leader.

And I'm Eric Derk, BDO's managing director of legal operations. Let's get started with this episode's exciting discussion.

Daniel Gold

And welcome back to another episode of BDO's Legal Tech Talk podcast. And I'm very excited because today, joining us in the virtual recording studio is Cari Sheehan. She is Taft law firm's assistant general counsel. And I'm excited for a number of reasons, mainly because I found somebody to bring on to the show who is as passionate about ethics and the law as I am.

And she's probably actually more passionate than I am about this because this is what she does. She advises firm attorneys with respect to ethics compliance, risk prevention, conflicts of interest. She's got over fifteen years worth of legal experience in civil litigation, conflicts of interest, and professional responsibility. And if that is not enough, one of the other things that Cari does is she's an adjunct professor at the IU Robert h McKinney School where she teaches professional responsibility.

Right there. There it is again. She's also a former assistant clinical professor of business law and ethics at the Kelley School of Business.

In addition to all of this passion that she's got for promoting ethical compliance in the law, she is an avid speaker, giving way over two hundred seminars on ethics and professionalism for various local and national platforms. I don't know if I've missed anything here, but, Cari, welcome to the program. We are so glad that you are here to join us today.

Cari Sheehan

Thank you. I'm excited to be here too.

Daniel Gold

Well, awesome. So you've got you know, I must have said ethics maybe five or six times in the introduction of everything that you do. You know, I'm gonna start off, counselor, with a compound question, if that's alright. And I'm very curious about not just what drew you to the legal profession, but more to the point, I'm very curious about why is it that you are so passionate about ethics? Like, what drew you to this particular part that you said, you know what? This is where my calling is.

Cari Sheehan

Well, I'll start with the first part of your question. I've always wanted to be a lawyer. I remember even way back in elementary school telling my mother that I either wanted to be a lawyer or a taxi cab driver. She kind of geared me toward that lawyer path, you know, probably rightfully so. In my defense, we'd just come back from a trip to New York where I'd driven in a taxi cab for the first time and I thought it was fascinating.

But yes, it was that passion towards the law.

And so everything I did even leading up to college and law school was geared towards going to law school and I don't know what drew me towards it, maybe it was just watching old law movies at my grandmother's house or what, but I just knew that I was going to be a lawyer someday. But the ethics part of it didn't even come in till later. If you would have asked me at law school what I wanted to do, I would have said criminal defense, hands down. And guess what?

I've never practiced one day of criminal defense, probably rightfully so, but I have never done that path. And it wasn't until about probably about seven, eight years into my practice, about twenty sixteen, I was doing litigation, I was a plaintiff's litigator, doing the daily grind, the depositions, the hearings, the trials, And finally I just needed a change. I was getting married, I just wanted to change out of the twenty four seven. I saw a random posting for a professional responsibility attorney in our local journal and I just applied.

I just applied. I said, you know what, I'm throwing my name in the hat, we're just gonna do it. Lo and behold, I got the job. I accepted the job and then I called the person who was supposed to be my mentor or was my mentor when I did join and I asked her, I go, what do you do every day?

I had just accepted a job, I had no idea what we were gonna do every day as professional responsibility counsel, and she looked at me and she just said, we will teach you everything you need to know. And they did, the law firm did. And then I just loved it. I loved the compliance piece.

I loved it being like a puzzle. You were kind of being like a mediator in making decisions and helping get business into the firm, making sure there was compliance.

And yes, we're called the no police a lot. Yes, we are not the biggest fans of the event, know. When they see professional responsibilities or internal ethics councils show up to an event, they're like, oh, now we have to behave. So you know, we are not the most popular people but I just enjoyed you know, the nuances of it, taking the rules, applying them because the rules are so vague. It's kinda like that puzzle piece of how do we fit into different things.

And since I dove head first into it, I started speaking on it, I started teaching at the Butler University as an adjunct back then in their Lacey School of Business at the time, and then transferred over to adjunct teaching at IU and the Robert H. McKinney School, as you said. So it was just, I fully immersed myself and I just enjoyed it. And so it's kind of like every lawyer, we always say what we wanna do, but that never tends to be what happens in our path as being a lawyer.

And we can always transition and I don't know why the firm hired me back then with who knows what they saw on my resume but they did. And it was just kind of I found my path and my passion that way for it. Back then it really wasn't technology. I mean that was twenty sixteen.

It was not even, you know, GenAI was not even on the mindset of anyone. I think more what it was was there was someone in my office or I'd heard a story, I can't remember if they're in my office or colleagues, And it was just kind of the worst point in their career. Like they had a disciplinary complaint against them, there was something going on, and we were the ones going to help. And I like that aspect of it.

I think it gave me that trial part back that I wanted to get out of the twenty fourseven, but also still helping other lawyers stay ethical and compliant. And here in Indiana we do have a Judge's and Lawyer's Assistance Program where if lawyers do get in trouble, we can work with them to help get them rehabilitation or services they need. And so having that too coupled with just helping lawyers in general and being involved in both, it just kind of ignited something and I just enjoyed it. I enjoyed helping law, like lawyers and legal services.

Laypersons are okay, but lawyers just of ignored my bread and butter at that point, yeah.

Daniel Gold

So here's what I'm wondering. So, you know, at a lot of law firms, I don't often see that there is such a laser focus on somebody who's directly responsible for ethics, Right? Or somebody who's directly responsible for ensuring that each of the lawyers uphold and maintain the rules of professional responsibility. So I love the fact that TAP does this and I'm so curious.

So how do you do that on a day to day basis? Right? Are you, you know, issuing memoranda out to everybody? Has everybody come to you before that they, you know, they do something that they think is wrong? What does that look like?

Cari Sheehan

Hopefully, it's the latter. We try to stop fires and not try to put them out, you know, afterwards. It more looks like, you know, we get random calls. Like, in any given day, maybe it's quiet that day, knock on wood, you know, I'm not juicing myself today.

But people can call in or email either general counsel or myself with questions. And this can be anything. Did they have agreements filed against them? A motion for sanctions?

A motion for disqualification? Is opposing counsel threatening an ethical violation? Or is there some ethics component in there that touches the rules of professional conduct? And so they call us and then we counsel them on what to do in that respect.

In addition to that internally within Taft, I push out six CLEs, I think it's six, five or six CLEs a year on ethics topics for internally in the firm on different topics that our lawyers want to hear.

We're also available to talk to different departments in the firm if they want to invite us to their departmental meetings. And then we do to monitor ABA opinions that come down, our different jurisdictions opinions that come down. I'm part of our AI task force and compliance group within the firm too which is where the technology comes in as well. And so we test, demo and figure out do we need a policy on this, do we not?

What do our lawyers want. Like a lot of lawyers are wanting to use GenAI, they're wanting to do those things and so then someone needs to figure out, okay, how do we do it and how do we do it ethically. So I'm part of that task force that works with IT and our client compliance group to make sure we can roll these things out and that we get the technology that keeps our lawyers ahead of the game and is efficient for our clients. It's kind of eye opening to see what they think is okay and not.

I've taught professional responsibility. I've taught other courses over at the law school as well. And I always call it when I walk into a classroom, you can just smell hope. I don't know if that sounds weird or not or it's just that they're still unjaded, unbiased, and so they have this innocence about them.

And talking to them about different ethics, different compliance things, you kinda see it through the lens that maybe we used to be in our 20s or whenever we became a lawyer. And so they've kind of like reshaped my thinking to not be so callous, not be so certain things and how I kind of deployed my advice to. But they also kind of bring up new stuff. Like I've had students who have written notes on GenAI in different areas.

And I learned as much as that student did, him doing the research, me just reading the research, you know, from his paper. And so they teach me too of what they're seeing every day and what's affecting them as students and then their experience as law clerks and interns in that. Because a lot of times once we get so far up in a firm, we don't get that innocent experience or that experience they're getting. And a lot of their concerns come with is GenAI going to replace the law clerk?

Is it going to replace the new associate? Especially when we're putting AI into our research programs and different things like that. So they're worried about those things. But then from the ethics standpoint they wanna use those things but they know they can't use those things.

And then if you tell them they can't, they're like, why? And so then you obviously have to explain different versions of why they can't do certain things. And I first thought when they started turning in papers to me at one point, this was when I was at the Kelley School, and I was like this student wrote this, you're a little bit too good. But I know this student's writing, it is a little bit too good for this caliber.

And so then I started putting in my syllabus, you can use AI, but you have to turn it in and different things. And then they wanna know why, and so then we explain the ethics, and then it's like that light bulb goes off in their head about it. So I will say just seeing that innocence, seeing that oh this is all new and exciting compared to when I lecture to more seasoned attorneys is kind of a delight. Like I enjoyed it and so, yep.

Daniel Gold

This is gonna be another compound question for sure, Cari. So I'm so interested in this idea of like the innocence of the students. So once a year, as I've talked about before on the show, once a year I get the privilege of going to be a guest professor Yes. Over at the KU Law School, the University of Kansas.

And and it's so funny because I've been doing it for five years now and I said to the students that I am most excited for them when they graduate because your generation of lawyers are at this inflection point of the law. Because they're going out there and they're gonna have these tools at their fingertips and we didn't have that. We had books. Right?

And so and it is gonna make a difference. And because it's so natural to them Mhmm. Then they get hit with, as you said, they go to the law firm. They get hit with, well, no.

Hold on a second. You can't use it. Mhmm. Right? And so it's almost like there's this excitement coming out of law school as a three l that, yes, I can use this.

But then it's woah, woah, woah, who do you think you are? Right? You're not gonna do that at all. And I'm really I'm really interested in your perspective on, you know, that's not congruent whatsoever.

Right? And so we wanna be encouraging innovation in the practice of law. We wanna be encouraging technology. But as you said before, you come across as the no police.

Cari Sheehan

Right? Sometimes by some people.

Daniel Gold

Sometimes. Yeah.

Yeah. So how do you fix that? You know, at all, it's nature of the law student excited. We have the tools, law firm right out the gates like no.

Cari Sheehan

A lot of it is education and kind of opening your mind. Like we can't be the no police even though we're perceived as that, we can't be that a lot of times. So it's like okay, you want to use this? Well maybe you can't use this version.

Well let's figure out if the firm will purchase a closed circuit version or something where we can use safely. And then obviously you have to take it up, get the approvals, get the funding, you know, money for it through the firm. But it's just kind of being open to those things because I mean Taft is modeled as the modern law firm. We want to stay on the forefront of the technology.

We want to stay where you know we're giving our clients the latest innovation. So a lot of times when younger lawyers come in and they have these ideas, we say okay, we understand, maybe don't use that just yet but help educate us on maybe what we can do on the back end. So kind of having that collaboration and then two, talking to more seasoned lawyers saying, I know you've always done it this way, I know this is routine, but here is kind of the newest, latest, greatest thing.

And a lot of lawyers are open to that because one, if you show them how it makes them more efficient, tell them that it's safe to use because we've done the research, we've read the terms and conditions, we've done all that stuff to make sure we're compliant with the rules, then they're more apt to start learning it, especially if it's going to make their life easier and it's going to help the clients as well. So it's just kind of having that education and having the conversations. And I always say there's so much power in just picking up the phone and talking to someone and not sending an email.

Like I can't tell you how many times an email's gone across and it causes a huge fight, but then you pick up the phone and it's resolved in like a minute. Because you know you just don't get the same effect. So it's having the meetings, getting the education out to the firm, know bringing those together and listening, actively listening and that's what we try to do at Taft is actively listen And if our attorneys want something we try to figure out how can we make this possible if we can to help them and our clients with that. We have some purchased closed circuit safe versions within Taft that we're demoing right now that we're testing out.

So I love to do those. Like I'll just put little things in there and say rewrite this for me or do this. And sometimes it's pertinent to what I'm doing, sometimes I'm just having fun with it to see what it can do.

I have to say one of my favorites right now are the note taking devices, the AI note taking that can come across through different platforms either like your traditional ones or you know, you can get third party ones too that you know, you can add into kind of when you do your Zoom calls.

And I demoed one once and it was other people in the firm on it, so it was very controlled demo. It was a free demo. We're on there, we're having a conversation, and so then I get back the transcript, I get the video that comes with the AI note taking. Then I see this little tab and I click on the little tab and I click on it and it's more, it was reading our facial expressions.

It was reading our body language and it said Cari was biased towards this speaker at this point. I was like, oh dear, this is not going to be pretty. Or so and so was disinterested, or so and so was not actively listening or looking away. Was like, this is gonna be horrible.

And this is a third party note taking one, not your traditional platforms where we do our calls, but a third party one. And I just remember sending that to the people who were on the call, and they're just like dying. They're like, oh my gosh, oh my gosh, what if clients use this? So understanding and demoing and playing with them, think is half my job.

If I'm going to be advising on them, I need to know how they function and how they work so that if our attorneys come to us or our group and say, hey, you know, what is this? Obviously IT is gonna chime in and our client innovation services. But then if they ask me about the ethics, I need to know how does this operate and, you know, what we can and can't do and how is that really going to hurt us in the background potentially at that point.

Daniel Gold

That is so wild. You know, I had a non gen AI version of that once. I had a colleague on a video call with me who I'm to me and told me stop slouching. Looks like you're not paying attention.

So I had that I had that also. Yeah. So the semantic analysis or or of nonverbal body behavior, that is so powerful because one of the things that just triggered for me was is that with GenAI, one of the things that I have heard other guests talk about, we found it ourselves. It helps elevate our ability to ask better questions.

Cari Sheehan

And the more that I played with it, one of the things that we're finding is that GenAI is really good at asking follow-up questions Yes.

Daniel Gold

And that kinda trains you. And the other thing that's really good at is if you're not asking really good questions, you're gonna get really bad answers. And so now this takes it a whole another level. This nonverbal body behavior and learning from that as well that trains humans as well. I do have to ask. So did Taft buy this software?

Cari Sheehan

Not yet. We are still demoing and looking into that note taking one right now. Interesting.

Daniel Gold

What have you found to be the most interesting use cases that can help propel lawyers to not just do their jobs more effectively, more efficiently, but also drive better client satisfaction?

Cari Sheehan

Sure, some uses that lawyers can do or use cases. I found it most beneficial and this may be for your smaller mid sized firms too. It can help with your advertising. It can help with client FAQs.

I know one lawyer was giving a local presentation to more mid sized, smaller firms in the area. One lawyer said that he used it to create FAQs for the clients because he was a litigator, he also did some criminal defense work and he seemed to keep getting the same repeated questions over and over again. So what he did was just take a ChatGPT or Perplexity or you know another third party AI public one that's available and just say make me FAQs for this. And there's no client information in there.

So there's no violation of rule one point six. There's no violation of anything else because again it's a general question.

And so if it stores it, learns from it, it's not gonna implicate a client file. And so I've seen use cases like that where if you can't afford to purchase the closed circuit ones, the ones that you can do client work in, you can use these public facing ones for more general stuff.

I've also heard some of my law students say that they were tasked over the summer with drafting a set of interrogatories for a certain case. They didn't know where to start. So you want to know what those students did? They went straight to an AI and said draft me a set of, you know, for this type of case, whether it be a personal injury or medical malpractice.

They didn't put personal information. They didn't put client information. They didn't do anything that would implicate the rules of professional conduct. They just generically said do this and then they took that starting point and created a more precise detailed form which is kind of when I talk to lawyers about this, I always say use GenAI in any use as your starting point, but not your ending point.

Meaning, do it for something generic, as any good lawyer we've gotta make edits, we've gotta like go through different drafts and versions, add in those details that are pertinent, do that offline, off the GenAI if you don't have one that meets the rules, and then you're fine using it. And so as long as you double check, as long as you have that oversight, then it can really help you with that starting point in your practice, especially if you're a young lawyer. So a lot of uses do come from those things. It's the uses where we don't double check the work, where we rely blindly on the cases it gives us to our detriment.

And so it's those cases where we want to stay away from, where we can't protect the client information, where we're not double checking. But general use cases, do a generic, that starting point, that starting out. And then it can help you immensely get your forms together, get your generic stuff together to use in your practice.

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Cari Sheehan

One of the biggest ethical concerns with any public facing GenAI, and I say public facing, mean your firm hasn't purchased a closed circuit or an enterprise version that just, you know, doesn't store the information.

But most AI models self train and they store your information and they can pass it out to third parties. So one of the biggest ethical concerns is rule one point six confidentiality. We have to maintain the confidence of their client no matter the source, anything pertaining to that representation. So I get a lot of pushback saying, well, I only uploaded a public document in there. There's no exception for public documents under rule one point six. Anything pertaining to the representation, no matter the source, we have to keep confidential for our client. Meaning even if it's on the docket, even if it's a public record, we cannot upload it into these GenAIs if it's not gonna keep the client confidences.

And so just understanding that, that is the biggest thing where lawyers are gonna get in trouble is that one point six. And how do you know if a GenAI model self learns, stores it, gives it out to third parties?

You have to read those wonderful terms and conditions. And so you have to go there and see what it does with this data, see how it stores it, processes it. Otherwise, you're not gonna know and you're gonna run into the rule. So that's one of the biggest rule violations is that one point six.

The other biggest rule violation is one point four, communication with our clients. I can't tell you how many times the lawyer's like, well I wanna use it. I'm like, great, you can use it. Go get consent from your client.

And they're like, well I don't wanna do that.

I don't wanna go tell the client I'm gonna use it.

I was like, well, that's part of our duties, especially if there's gonna be a risk of violation of rule one point six, let's get that consent from the client that they know the risk, that they're gonna consume those risks and that they're gonna allow you to use it.

But I think there's this stigma that lawyers think if they go to the client and say I want to use GenAI, that the client's not gonna think they're competent to do the case themselves or there's going to be some pushback there from the client, which there rightfully might be. But the ABA formal opinion five twelve that came down regarding all the ethical rules said that we have to have that communication with the client under rule one point four. And in there we have to have a disclosure of which AI tool we're using, the risk and benefits associated with it, how we're gonna use the tool, why it's important for the client's case or how it can improve the client's case and then get the client to give informed consent confirmed in writing. So you need to put all that into a disclosure based on you know what the ABA has told us. And a lot of attorneys think that's a lot, my client's not going to sign that.

Communication. Well they need to. And so that is something to another big ethical violation that can come is just failure to get that consent. And I also will say too, I deal with a lot of outside counsel guidelines, those terms from the client to the firm.

And a lot of companies and corporations are putting in their terms and conditions that they don't want their lawyers to use GenAI. Or they can only use GenAI if they get that consent which the ABA told us we had to get anyway. So clients are even catching on knowing that lawyers are thinking about using these things and preemptively putting it in their own terms and conditions to force us to get that consent and comply. Now there's other ethical violations like one point five fees, how do we charge for it?

You know, obviously you can only charge for the time you actually spent, not the time you would have spent on something. So it can really cut down that billable hour. It can also produce bias results, false results. Those implicate rules eight point four or truth rules like three point three, three point four, seven point one.

All of those can come under the truthfulness as well. And so there's tons of implications, but the biggest two are those rules one point six and one point four and that's where a lot of lawyers break down. And then two, I think the third one, if you had to name one, the truthfulness. When you get those hallucinations, those false results, blindly turn them into the court without checking them, you're lying to the court and you're lying to opposing counsel.

So that's kinda where a lot of lawyers are starting to get disciplined or in trouble or sanctioned for in those areas.

Daniel Gold

This was music to my ears and I'm hoping, obviously, professor, to all of our listeners as well. There was something that you said earlier that I do really wanna touch on again. I even highlighted it here in my notepad, and you said read the terms and conditions.

And that's really important because everything that you just said about one point six, about one point four, about one point five, etcetera, none of that is even remotely possible to understand if they don't understand the fact that they've got an ethical responsibility to understand the risks and benefits of relevant technology being rule one point one, obviously, eight that was amended in two thousand and twelve. And I believe now forty different states have all caught on to comment eight and amended it in some form or fashion. And so Mhmm. When you go through this whole list here, there's a couple things that pop out to me because one of the things that I think about is this one point four that you were talking about, this communication disclosure.

Cari Sheehan

I remember that there was an ethics opinion in California. I wanna say it was about in two thousand and ten, if I'm not mistaken. And it was basically admonishing lawyers that walked into, let's say, an overly priced coffee shop. We'll just generically call that.

And they wanna go ahead and use their free Wi Fi.

Daniel Gold

Okay.

Cari Sheehan

And they're they wanna use the free Wi Fi, and there doesn't have to be any sort of VPN or any sort of firewalls in place.

Daniel Gold

Mhmm.

Cari Sheehan

And so said lawyer is working on client information on their laptop in this overly priced coffee shop, gets up, goes, you know, gets a refill. The coffee doesn't have a screen lock. Right? And so the question becomes, like, what were the ethical violations?

Well, number one, they're using free Wi Fi. Well, what's the problem with free Wi Fi? Well, if they're using free Wi Fi and there's no protections, they may potentially violate rule one point six, which then pierces the attorney client privilege doctrine and, of course, obviously walking away without locking the screen. So now it almost seems silly to me that as an attorney, I have to ask my client if it's acceptable to sit inside an overly priced coffee shop with free Wi Fi where there's no protection and work on their data.

Right? It just seems ridiculous. And so California being California, like, were actually ahead of their times there. Right?

They were ahead of time because that makes sense. And now we're talking about GenAI. So So it's like, dear client, I wanna use GenAI to help me write the briefs. Well, then the question becomes is what of one point five?

Daniel Gold

Right? Mhmm. And so just for all of our listeners to recap, one point five talking about fees, and you could only charge for the actual time spent, not for everything else. But I gotta tell you, like, that is something that is really a big topic.

It's a big concern because you said it yourself, the billable hour. So is it possible this is a lot of talking here. Is it possible that we're getting to a point where we can actually get to a value based billing system as opposed to just an hourly based billing system because GenAI is sort of forcing this on us now? What do you think?

Cari Sheehan

I think it is. And a lot of law firms, your bigger firms, I think are looking at that. The value pricing. They have pricing analysts, pricing managers, like whole legal ops pricing departments and a lot of bigger firms trying to figure out how do we have that value, how do we still do we go to more flat fee, do we go to like a split hybrid type of situation?

And the courts really haven't come down with anything because this so new. There's been no full ethics opinion on one point five with the use of technology and GenAI. It was actually my students, I was a moot court coach this last spring for some students doing moot court. And question for move to court, one of the three issues that they had to argue was how do they bill for the usage in AI? Is it an expense or is it a fee? And the case was cited with using Illinois jurisdiction and there's no guidance.

Like they had, you know, formal opinion five twelve, they had all these different things. And so firms are grappling with do we do it more like legal research? Is that where it's gonna fall under where even a lot of clients won't pay for legal research or they'll only pay up to so many hours?

Do we do it like we have a subscription to these AI platforms that we prorate that subscription kind of like you know, a fee. But again, a lot of clients won't pay for that, they look at it as overhead.

Or do we go to a different model saying yes, we'll work on your case but now we're not gonna charge hourly anymore, we're gonna charge a flat fee or a value based fee or you know something else. And so firms are grappling with that and a lot of like I said, the bigger firms that I've heard of do have pricing analysts and pricing managers and people trying to figure out how to merge this, allowing our lawyers to use it but not lose that revenue that we're used to having come in from doing the client work. And so it is going to be an interesting thing. But I can see a shift in how lawyers charge coming in the future if this keeps moving at the trajectory it's going.

Because otherwise all your hourly lawyers are gonna have a lot of free time. And so I don't. But for your contingency fee based lawyers, this is like a dream. This is you know, this allows them to do more work and more volume work you know at a faster rate and still get you know the value they want and then that contingency fee instead of five cents on the hour you know after a five year case, you're maybe making five dollars on the hour.

Who knows? So it depends on where you're at but yes I can see a shift coming in how firms and clients and attorneys negotiate those fees and what the pricing structures could be in the future for a lot of firms. I would like to see some updated guidance and maybe it's the rule one point one that Daniel mentioned too, competence. We drop another note or comment in there.

Just about, you know, the technology. Because there's not one rule either on social media. There's not a rule on using those things. And there's not even a lot of comments.

It just says we have to stay up to date on the relevant technology that affects our clients and our practice. You know, kind of a Paris phrase comment of that rule.

And so even when social media and the internet and all that stuff came about, and even email, email was part of it too, we used to have to ask consent to send emails if you remember way back when, if you're that old or can remember that part back then.

But I do think eventually we need some revamping of at least those comments or maybe add another section to like that competency or add, you know, a subpart to another rule. Maybe the truthfulness rule or the confidentiality rule or just something along there because with social media, the internet, and now GenAI, the rules need to kinda come up to date with some of those things. They came up to date when cannabis became legal in state level, but still illegal in federal. A lot of states amended the rule one point two d or dropped a comment about it.

So I would like to see that happen hopefully eventually with GenAI and with, you know, even just social media because social media is not going away either. We have TikTok lawyers out there. So it's, you know, it keeps coming. If you have not looked up TikTok lawyers, I encourage you to get on the TikTok network and find those TikTok lawyers.

So, but yes, I think I would like to see an update. The ABA did come down with a formal opinion which I'm so grateful for, It's what I've been lecturing on up into that point anyway, but just to have some confirmation that, hey, we are on the right track here and thinking about this.

Daniel Gold

So So the rules though are so slow to change though, Cari.

I mean, you know, we all know this. And Mhmm. One of the things I'm thinking about was our conversation that we had with retired judge Paul Grimm. And and I don't remember whether it was the first or the second one that judge Grimm came on the program with us.

But, you know, one of the things, Cari, that we talked about was federal rules of evidence nine zero one, which is authenticating or identifying evidence. And Mhmm. The practical application of trying to authenticate evidence in the world of GenAI, either whether it's deepfake or we're having the GenAI create images for us, that is a massive ethical concern. And Mhmm.

You know, I'll give you an example. I heard about one of our fellow geeks out there on social media was talking about utilizing GenAI to actually fake a receipt. And so I tried it myself and it literally rendered a receipt with the last four digits of my Amex of my credit card. And I asked the GenAI program to make the receipt look a little bit crumpled.

Right? And it did. And it literally had the name of the coffee shop, the address, the telephone number, what I ordered, and the last four digits of my credit card. And I'm looking at this, and I'm thinking this in the context of federal rules nine zero one.

How do I actually combat this as an attorney when the whole critical issue could be a contract and you could fake that? Or it was the fact that somebody claimed you and I were both plaintiff lawyers. Right? Uh-huh.

And so I've got a client who's saying they've got c seven, you know, radiculopathy. Right? It had this car accident. And so I tell JN AI to render a photo of them playing golf on the eighteenth hole.

Right? That is just the biggest ethical quandary. Well, how do you solve for that, Cari?

Cari Sheehan

It's hard to even answer that question because you've gotta authenticate it somehow. But if you can't trust what you're seeing or if you don't even have the funds to maybe hire an expert and go through the different pixels, is it off here, is it not off here, like really analyze it. Like that's what I see a lot of, you know, lawyers if they are coming up against that, they're gonna have to do that. They're going to have to hire someone to say, is this a fake or is this original?

Which then drives those costs of litigation, drives up the cost of you know, just experts we have to have and how do we authenticate evidence going into trial. But it is a huge concern. And it's not just necessarily the pictures or the receipts, but also voice and video. Like you could take you're recording this now.

You could take my voice, take it to somewhere else, make me say something else because you have a recording of my voice, don't do it. But you know what I'm talking about.

And you know, put it on someone else's body or even on my body somewhere else. And so it's not just being able to, as you say, fake that receipt, but also the voice cloning and the different things. And on top of that, cybersecurity is another topic I always lecture on too is those phishing emails are getting a lot harder to spot than they used to be way back when. So we are gonna have evidence issues, we are going to have authentication issues, we're probably gonna have increased experts, increased trying to authenticate, maybe even see a change in those rules that we have to have those experts now.

Or that in order to authenticate a photo, now you have to have x y z instead of just the person who took it or allegedly took it at that point. So you are gonna have a lot of those issues coming across. And I know IP lawyers are having a field day because as you know, AI doesn't recognize IP such as trademarks, copyrights or anything like that. And so then people are getting their intellectual property stolen and then they're saying no, it's mine but you technically can't claim something as your own or get a patent or trademark on it if a AI model produced it for you.

That is something that our IP lawyers have said and something they're litigating and different things.

But again, you're gonna have all these issues that are gonna create more legal issues. And so I do think the rules of evidence, authentication, the rules of ethics, all these are gonna have to come up to par with what's actually happening because it's not going We have a job for a I personally don't necessarily educate the client. I educate our lawyers to educate the clients and push out that guidance in that way. But I'm always happy.

I have gone in house to a couple companies over the past few years and talked about AI. I've talked about AI with accountants. There's an accounting organization that had me come in and do a CLE for them. And you know, so outside the industry, like the company had me come in.

Then I did it for two other entities. And so yes, I think educating clients and companies is great and it needs to be done because it affects them too. And sometimes it affects their policies internally, like what is their confidentiality policy if they're not lawyers? What are these things?

How should they advise their own employees, not just how they interact with their lawyers, but also too, how do they manage their day to day? And so like I said, a lot of the guidance right now I give is from me to our lawyers and our lawyers should educate the clients on the stuff that affects their legal work, what we're doing legally for the clients. But I have gone in, as I said, to companies to educate them on what maybe they should be doing for their day to day. Not necessarily with their lawyers, but their own policies within those companies.

And I think that's part of it too. And that's why I think we're seeing the uptick in outside counsel guidelines that say no, GenAI. Or you need to get approval. Here's how you do it.

Because they're getting smarter. They're understanding how it affects their business and their company as well.

Daniel Gold

Something else you mentioned earlier before that I think is important for our listeners as well is talking about bias. What did you mean when you were talking about bias in GenAI?

Cari Sheehan

Well, is a fun one because okay. So GenAI, most platforms like your chat GPTs, your clouds, your perplexities, I always describe it as they pull information from like a swimming pool. And so just imagine an imaginary swimming pool. Well that imaginary swimming pool usually is the internet or different sources from the internet.

And when you think about the internet, do you think the internet is unbiased? Hopefully the answer is no. Hopefully everyone's kinda chuckling at that. We have right wing, left wing, biased content, false content And these these Gen platforms are pulling from that pool of information that's not accurate, that's biased or potentially biased, or one side versus the other.

And GenAI is only as good as the programmer who programs it and where they get their data from and their information from. So it is going to pull biased results. It is going to pull those false results.

And under the rules of professional conduct, it's eight point four D as in dog or eight point four gs as in girl that are going to be implicated. I say both rules. One is prejudicial to the administration of justice, eight point four D.

Eight point four gs as in girl is what I call the anti discrimination and anti bias rule, but it's not in every jurisdiction. And so if you don't have the eight point four gs, they're gonna get you under eight point four D.

Eight point four gs has protected classes just like Title VII does. It says you cannot discriminate, hold bias or prejudice while practicing law against any of those protected classes. So if you get information that's biased or shows that bias you're going to have a violation of not one, but both of those rules if you have them in your jurisdiction.

And so that's what I mean by saying that GenAI can produce biased results. It's from where it pulls the information, how it relays that information to you and it can be through an image or you know certain data sub points but it only pulls from a tiny swimming pool and not the bigger swimming pool that it should pull from so then you have a bias subsection.

So you've gotta be careful too in reading those user terms and conditions. Where is it pulling its information from? Is it up to date? Is it not up to date? And how is it programmed? Those are all questions that we need to be asking too.

Otherwise you can get into those bias violations under eight point four. We test out products before we push them out to the whole firm. And so that's kind of one of the questions that could be on our testing is, you know, does it keep our security? Does it do this?

What type of results does it produce? Are they false? Are they biased? And you know, getting that feedback when it comes in of how it's doing it.

But no, I think it's a great thing to do because they all do it. And I was actually too, which wasn't mentioned in my bio, on the task force for Indiana, which was created and appointed last year by the legislature. We were kind of like a half year task force talking about how GenAI I is gonna be used for the state of Indiana. And just hearing some of the people who spoke at that task force, some of the issues were discussed, bias was a big one.

Especially if they're gonna use it in say jails or in criminal proceedings or in lineups. And I know that's outside the legal profession, but it's affecting everything just if it is producing these bias results and producing these things coming back. And there's ethical implications there too because bias is an ethical concern. And so whether it be in the law legally under our rules for our lawyers or whether it be in a business, it's still gonna be a concern at that point.

Daniel Gold

It makes me think of this this whole topic of bias just to, you know, close the loop on this one. It sounds like everything both flawed and beautiful about technology begins with the inherent failabilities of humankind. Mhmm.

So leave us on a note here. So on a positive note, Cari, so if all of our listeners out there are also struggling, which they probably are Mhmm. With what to do within AI, what would you recommend as a clear, concise direction as to what an AI roadmap could potentially look like for them at their respective companies?

Cari Sheehan

Sure. I say don't be scared of it, first of all. It is coming, it's coming fast and we have to learn it so don't be scared of it. Create that free account, get that trial period, always think of it as that starting point not the ending point and just test it out.

Try stuff to see where you know the answer or should know the answer so you can verify the results and test it out. But also to know that if you test it out and you think oh this is great and wonderful, never fully rely on it. Again, never get out of that mindset. This is a starting point, not the ending point.

And it can help you, but it can also really hurt you. And so if we keep that mindset knowing that we still have to have the oversight, we still have to check the results, and that we still have to personally critically think and give that end result and that oversight we need, then we should be able to use it safely. And also too as much as we hate it, read those user terms and conditions before you even start. I always poll my audience and say who reads their cell phone user terms and conditions?

No one raises their hand. Or who reads your email user terms and conditions? Because Gmail has user terms and conditions.

No one raises their hand. But we need to read the GenAI user terms and conditions whether you're a solo practitioner in a big law firm, someone needs to be reading them to know if you can meet those compliance standards. And even if you're outside the legal industry, you still need to read them. So you know if your company is gonna be implicated in some way or you're gonna break a company policy or not have confidentiality in your company's information.

So I guess the key takeaway if you just want a short phrase, starting point not an ending point and just embrace it and have fun with it.

Daniel Gold

Thank you very much. It was a pleasure having you on the program.

Cari Sheehan

Thank you very much.

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Daniel Gold
About your host

Daniel Gold is an attorney and a Principal at BDO USA, where he leads eDiscovery managed services. He hosts BDO's Legal Tech Talk, co-hosts the NeLI Pod and founded Gold Standard Leadership.

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