AI, Competence, and Malpractice Liability

By: Sophia Benavente

The legal profession has historically depended on human judgement and professional expertise to interpret and apply the law with the intention of serving justice. However, exponential technological advancement has begun to reshape how legal work is performed. Until recently, the notion that artificial intelligence (AI) could play a meaningful role in legal practice was largely confined to speculation. What was once considered to be theoretical in the legal field has now become a reality. AI is now recognized to be a transformative force in the industry, offering enhanced productivity and innovative capabilities. With each new case it appears as if AI is further embedded into the law and is impossible to avoid. This raises the question: if a lawyer uses AI, and something goes wrong–who is to blame?

To answer this, it is important to first examine the responsibilities of lawyers. Under the American Bar Association’s Model Rules of Professional Conduct, “competence” requires that “[a] lawyer shall provide competent representation to a client,” which entails the “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [8] states that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology,” or in shorter words, technology competence should be treated as an ethical requirement.

Still, it is important to note that using AI has significant benefits between legal writing, aiding in research, and contract drafting. However, this does not come without risks. There have been numerous incidents where AI has interfered in the rule of law. One such example is in Noland v. Land of the Free, L.P.., where an attorney submitted court filings that relied on legal authorities generated by an AI tool during research. When the court reviewed the filing, it discovered that several of the cited cases could not be located in any legal database. The court ultimately emphasized that attorneys remain responsible for ensuring the accuracy of all citations and representations made to the court. The ABA’s Rule 1.6: Confidentiality of Information establishes the importance of confidentiality between a client and a lawyer, however, the use of AI poses the risk of uploading sensitive client information into third-party AI systems. Human rights organizations have raised concern over AI’s discrimination on the bias of race, sex, gender, and other identity characterizations. 

Different states in the U.S. have attemptedbeen faced with attempting to reinterpret tech competence, faced with the question of who is to blame when an attorney uses AI. Cornell Law School’s Legal Information Institute explains that legal malpractice occurs when “the lawyer breached their duty of care to the client and the client was harmed as a result.” Applying malpractice in the age of AI would require firms to determine if a “reasonable” attorney would be able to rely on AI without verification, or if failing to use AI would be considered negligent if it is the standard for the industry. Lawyers would have to perform a kind of supervisory duty for AI. ABA Rules 5.1 and 5.3 explain how to supervise lawyer and nonlawyer assistance. Whether or not AI can be considered a “nonlawyer assistant” would help to understand how they should be regarded. Several states in the U.S. have already found themselves having to reinterpret tech competence. 

It is also important to recognize that women attorneys are disproportionately scrutinized for any human errors that they commit, making the blame they may take from AI’s mistakes fall heavier on them. Women are not only perceived to be less tech savvy than their male counterparts, but suffer from their own confidence gaps in tech adoption. The inescapability of AI means that AI literacy is crucial for women entering law, and it is important to build tech competence now. 

Some safeguards are already clear: attorneys must verify AI-generated information, and treat these systems as tools, rather than authorities. The question is no longer whether AI will enter the profession– it already has. This does not mean that AI will be replacing attorneys, however; there will be a divide between those who understand how to use these technologies responsibly and those who do not. As a result, competence in modern legal practice increasingly requires technological literacy, and failing to engage with these tools may soon carry ethical consequences. The future of legal ethics is being shaped in real time, and when used responsibly, AI has the potential not to weaken the profession, but to strengthen the fairness, diligence, and accuracy that lie at the heart of legal advocacy. 

Works Cited

American Bar Association. “Rule 1.1 Competence - Comment.” American Bar Association, www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1.

---. “Rule 1.6: Confidentiality of Information.” American Bar Association, www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.

---. “Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers.” American Bar Association, 17 Apr. 2019, www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_1_responsibilities_of_a_partner_or_supervisory_lawyer.

---. “Rule 5.3: Responsibilities Regarding Nonlawyer Assistance.” American Bar Association, 5BC, www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_3_responsibilities_regarding_nonlawyer_assistant.

Blanding, Michael. “Women Are Avoiding AI. Will Their Careers Suffer?” Harvard Business School, 20 Feb. 2025, www.library.hbs.edu/working-knowledge/women-are-avoiding-using-artificial-intelligence-can-that-hurt-their-careers.

Dawson, Gregory S., et al. “How Different States Are Approaching AI.” Brookings, 18 Aug. 2025, www.brookings.edu/articles/how-different-states-are-approaching-ai.

Dureva, Desislava. “How Is AI Impacting the Legal Profession?” Vanderbilt Master of Legal Studies, 21 Jan. 2026, law.vanderbilt.edu/master-legal-studies/articles/how-is-ai-impacting-the-legal-profession.

Elsesser, Kim. “Female Lawyers Face Widespread Gender Bias, According to New Study.” Forbes, 5 Oct. 2018, www.forbes.com/sites/kimelsesser/2018/10/01/female-lawyers-face-widespread-gender-bias-according-to-new-study/?utm_source=chatgpt.com.

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