Abstract
Could refusal to use AI soon amount to professional negligence? This article argues that it should in some cases. Negligence measures the quality of legal service, and emerging technologies alter what competent lawyers can reasonably achieve. A lawyer who refuses to evaluate an accessible, secure AI system may breach the standard of care if that refusal causes, e.g. a missed legal authority, defective review or unnecessary expense. Doctrines in the United States, England and Wales, and Canada can accommodate such a claim without imposing a general duty to adopt AI. Liability should consider the tools available at the time, the feasibility of verification, and proof of causation and loss.
The standard of professional care
The relevant object of negligence law is the quality of the service a reasonably competent lawyer would have provided in the circumstances of a particular retainer. What changes as tools improve is the range of methods through which that service can reasonably be delivered.1
The U.S. law of professional competence sets a classical foundation. In Smith v Lewis, the California Supreme Court held that counsel should discover rules readily ascertainable by standard research and undertake reasonable research even where the law is unsettled.2 The reference to “standard” techniques identifies an historically contingent means of inquiry.