The last time you stepped into a retail store (remember those days?!) you may have been met with a friendly greeting and an offer to help. Now, as successful attorneys turn to new methods to engage potential clients, it’s not uncommon to find an integrated legal chatbot on their website, ready and able to have a similar engagement with customers at their online front door (i.e., the homepage).
Just as the quality of your legal services should always be advancing, so should your clients’ experience with your business. This starts from the moment they land on your website – the modern-day first impression!
Using a Human vs. a Machine
Before we explore the ethical quandaries at play, let’s first talk about chat operators vs. legal chatbots of varying degrees of complexity.
Short of attending a magic show, no one likes to be duped, misled, or deceived (not to mention it’s unethical for lawyers to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation” Rule 8.4(c)). Bots can go well beyond simple decision-tree programmed responses to simulate human interaction, so much so that a user may not be able to discern if they are speaking to a bot or a human. For example, Replika is a chatbot companion powered by artificial intelligence that people have reported feeling connected to during the quarantine.
If your tool uses a live person – someone who is likely from the service you’re subscribing to – make that clear from the start. This initial transparency should make it evident that potential clients are chatting with an operator who can provide information, including how to speak to an attorney, if applicable.
Likewise, if the tool is a legal chatbot, say so! You might even name your bot or use a robot icon alongside the chat. Keep the consumer’s expectations in mind and hope to under-promise and over-deliver.
Consumers today are confronted with countless online intake triage forms and bots to help them find answers. Don’t risk losing the consumer’s trust during that first impression. At the same time, keep other communication channels in place so potential clients can engage with a person if they have further questions, are concerned for security, or even have an emergency need.
May I Help You? Information vs. Advice
People aren’t just landing on attorney websites looking to hire an attorney. They are looking for answers on their own. In Illinois, the trend of self-represented litigants (SRLs) is increasing. Ninety-three of Illinois’ 102 counties reported that more than 50% of civil cases involved an SRL on at least one side. In some case types, that number rose as high as 80%. This statistic was reflected in jurisdictions from all four corners of the state.
An online chat function should not equate to stepping into a lawyer’s office. A legal chatbot or a chat operator who isn’t a lawyer must limit the conversation to informational only. They cannot provide legal advice or interpretations, or recommendations about how to proceed. In general, they may only answer questions that call for factual information and not those that call for an opinion or guidance.
Lawyers may provide competent (Rule 1.1) advice (Rule 2.1) in their licensed jurisdiction (Rule 5.5). There’s a lot to unpack there. Hopefully, this is where clients find value in representation. Rule 2.1 directs lawyers to render such value in the form of well-rounded advice:
“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, that may be relevant to the client’s situation.”
Establishing the boundaries of the chat conversation from the onset will properly align the consumer’s expectations. The user should know that if they want to engage with an attorney, a next step must be taken, like scheduling an appointment, completing an in-take form, or executing an engagement agreement.
An automated disclaimer (in addition to your website disclaimer) at the start of the chat should assert that no legal advice will be given and no attorney-client relationship will be formed through the chat. For example, “Any information disclosed during this conversation is not legal advice and does not create an attorney-client relationship.”
Furthermore, other content in your disclaimer can set a proper tone for how your firm values the delivery of legal services. This might include a comment on respecting the confidentiality of the conversation or that legal advice will only be provided once an attorney has been engaged to give full and proper consideration to all relevant information relating to the individual situation. See, doesn’t that sound like a firm you want to hire?
Client Engagement & Confidentiality
Twenty years ago, ethical opinions explored how lawyers might engage in then-popular internet chatrooms or online bulletin boards without violating the Rules of Professional Conduct, specifically the advertising restrictions in place at that time. Today, ethical concerns have shifted from how lawyers might be soliciting business to how they are communicating and if the information in those communications is being reasonably protected.
Your due diligence in selecting a chat product should explore how the vendor will protect confidential information related to the representation of a client. Just as you must make reasonable efforts to evaluate tech vendors for things like cloud security, take steps to ensure the security practices of automated legal chatbots or live chat function providers.
A prudent attorney will contemplate many aspects of how their clients’ information is being received, transmitted, stored, and even destroyed when implementing any new technology into their practice. A chat with a potential client could contain private information related to their situation as well as other sensitive data such as financial information or healthcare-related details.
Rule 1.6 (Confidentiality of Information), Comments 18 and 19 emphasize the reasonableness of the steps taken without having to have a computer science degree:
[18] Paragraph (e) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (e) if the lawyer has made reasonable efforts to prevent the access or disclosure. …
[19] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. …
Comment 18 further provides factors to be considered in determining the reasonableness of the lawyer’s efforts:
- the sensitivity of the information,
- the likelihood of disclosure if additional safeguards are not employed,
- the cost of employing additional safeguards,
- the difficulty of implementing the safeguards, and
- the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.
So, at the outset of contracting with a chat vendor, your due diligence inquiries might include questions covering topics such as:
- Data Protection – How has the provider implemented reasonable security precautions to protect information from inadvertent disclosures?
- Security Updates – How does the provider plan to update and maintain its security measures to meet industry standards?
- Data Confidentiality – Does the provider agree to reasonably ensure that it will abide by your duties of confidentiality and immediately notify you of any breaches?
- Data Ownership – Does the provider agree to provide you, and only you, with the data obtained from your portal and to confirm that you are the owner of that data?
- Agreement Termination – What mechanisms are in place for the reasonable retrieval of information if the service agreement is terminated or if the provider goes out of business?
Supervising Chat Agents
Rules 5.1 to 5.3 govern the supervision by law firms and lawyers of subordinate lawyers and other legal professionals, and ongoing compliance with the Illinois Rules of Professional Conduct. While you have not coded the chatbot or trained the live chat operator, you nevertheless must have “in effect measures giving reasonable assurance that the person’s [or bot’s!?] conduct is compatible with the professional obligations of the lawyer.” Rule 5.3(a).
In the case of chats, determine what training and review processes are in place on the vendor’s end and to what extent chat transcripts are shared with you to meet your supervision obligations. The majority of chats won’t become leads. Will those conversations be shared with you for quality control, feedback, and ethical compliance? Also, whether you’re using a legal chatbot or a live host, you will want the ability to adjust decision-tree responses or scripts to better fit your needs.
Lastly, proper supervision can impact the quality of the leads your firm gains from employing a chat vendor. If you are paying per lead with little regard for the type of representation the potential client is seeking, how reliable or useful is the intake process?
Your scope of competent representation must steer the engagement of new clients (Rule 1.1), not the clients’ needs themselves. The chat vendor must have proper training and oversight to admit appropriate leads to your doorstep while referring customers with other issues elsewhere. Only then can your ROI for such a tool begin to balance with your ethical obligations.
Conclusion
The majority of states have already enacted the comment to the ethics rule requiring legal professionals to be competent by understanding “the benefits and risks associated with relevant technology.”
As you explore implementing a chat service, consider your primary view as that of a provider of legal services (confidentiality, advice, supervision, etc.), while weighing the view of a business operator (marketing, engagement, ROI, etc.).
Attorneys who use legal chatbots or live chat operators to create an engaging online “front door” to their law practice must be mindful of these ethical challenges but should not be dissuaded from employing them.
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