Ethics in Brief: Ethical Considerations in Using Notetakers
By David Majchrzak
In the television series Friends, Ross and Rachel famously have a different interpretation of the expression, “we were on a break.” One believed that meant that the relationship was permanently over, allowing the pursuit of other relationships. The other clearly did not. Though this type of misunderstanding may be comical in the context of television entertainment, lawyers and clients alike generally want their file materials to be accurate and clear.
But that is one of the problems inherent in the increasing use of artificial intelligence notetakers. For those not familiar with the tool, notetakers are software, sometimes embedded in videoconference platforms that provide summaries, often very quickly during or following a conversation. It can be tempting to use this because it represents a way to avoid taking notes during the conversation so the participant can be more present. But the process raises some risks that lawyers should consider.
First and foremost, the notetaker may not accurately capture what was communicated. Notetakers work similarly to other generative artificial intelligence tools. A predictive language model forms the foundation for creating the notes. So, what was said will differ from what the notes reflect. That could mean changes in connotation. And, in any event, there are ways we communicate that the artificial intelligence does not discern, such as sarcasm.
Consider the following example. A probate client tells their lawyer that they are so upset that they could kill the sibling they are litigating their parents’ estate with. Attempting to both acknowledge the client’s feelings and perhaps relieve the tension, the lawyer sarcastically comments that is a sensational plan. Though both the lawyer and client understood the comment was said in jest, the notetaker does not and instead prepares a note that the lawyer advised the client that killing their sibling is a great idea.
Predictive language models have caused similar issues when used to generate law and motion documents. Though a well-written and well-argued paper could result, the risk that the brief will be inaccurate or somehow lacking has been famously realized many times. Just like a predicted brief may be based on the tool not considering that an opinion was voiced in dissent, a notetaker may not realize that the speakers in a conversation were dispelling notions, rather than advocating for positions.
To the extent lawyers want to use notetakers nonetheless, or permit their clients to use them during communications with lawyers, there are a few things to keep in mind. First, the nature of the technology is usually to record the information, albeit sometimes temporarily, to predict what a fair summary is. This, in itself raises two issues for lawyers. To the extent that the law requires it, they need to obtain permission to make such a recording. Second, there is an obligation to protect confidentiality. In this context, that means understanding the technology and making sure that no person outside of the lawyer and client will have access to that information.
If the lawyer is able to move forward from there and chooses to use the notetaker, then the output needs to be handled in the same way as other documents. The notes become part of the client’s file and, accordingly, must be preserved. Because of the potential issues with accuracy discussed above, the analogue to this mandate is that lawyers should review them promptly for errors, whether for simply being wrong or for failing to pick up the nuances in the conversation that impact the meaning of what is said. Lawyers should note any issues they spot and may wish to consider whether they should send the other people from the conversation a follow up communication for clarification. The notes may, in fact, be helpful in pointing out an ambiguity that the lawyer did not realize existed. Therefore, it could prove helpful in identifying a misunderstanding to clear up.
To the extent that a lawyer has a question about whether a notetaker should be used, a client conversation can be a good tool for assisting with that decision. As with any approach to handling the client’s matter, the lawyer may discuss the proposed use of the notetaker and discuss both the benefits and the risks of doing so.
As with any tool, there are risks of using notetakers generally. The type and degree of risks may vary between tools. But that is not to suggest that lawyers simply abandon the idea of using such tools. Indeed, they can be helpful to make sure that all of the participants can focus on what is being said, rather than being a half step behind as they take notes. But the decision whether to use them should be one based on a consideration of the above factors and whether there is a tool that both fits the purpose and permits the lawyer to fulfill professional responsibilities.
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