There’s a new standard of competent and diligent practice – and it requires using AI.

AI is quickly defining a new standard for the competent and diligent practice of law. With the technology available to us today, the question is no longer whether a lawyer can or should use AI. Instead, it is whether the failure to use AI is a breach of a lawyer’s standard of care. For example, the failure to leverage AI’s efficiency to reduce client costs could now breach an attorney’s duty of competence and an attorney’s ethical requirement to charge reasonable fees.

Evolving Standards of Competence and Diligence

Lawyers have a duty of competent and diligent representation. This duty is not static; it is defined by the tools and standards at the present time.

The ABA Model Rules of Professional Conduct establish a lawyer’s baseline obligation.  Model Rule 1.1 states that “a lawyer shall provide competent representation to a client.”  Competent representation requires that an attorney have “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The Virginia Rules of Professional Conduct have adopted the same rule.

Both rules contain a “technological competence” mandate, which is noted in the comments to Rule 1.1. In Virginia, technological competence includes “inquiry into … [the] use of methods and procedures meeting the standards of current practitioners.”¹ Similarly attorneys must pay attention to “the benefits and risks associated with relevant technology.”²

The use of AI for tasks like legal research, due diligence, and e-discovery is quickly becoming a “method and procedure” of a current practitioner. If an AI tool or agent can perform a necessary administrative or research task in five-percent of the time of a lawyer doing a Boolean or other manual search, the failure to utilize that tool—especially when the resulting cost is passed to the client—could be reasonably viewed as a breach of both Rule 1.3 (Diligence) and the duty of thoroughness under Rule 1.1.

Reasonable Fees and Attorney Efficiency

The most realistic example of malpractice stems from overcharging clients for work that could now be done by AI. ABA Model Rule 1.5 requires that an attorney’s fee reflects “the time and labor required” and “the skill requisite to perform the legal service properly.”³ If AI can perform a research task in a matter of seconds or minutes, can an attorney ethically do the same search manually and charge 8 hours of research time? At this point, I would argue that the answer is no. An attorney may charge for her time reviewing and verifying the AI tool’s work. But if that AI tool is widely used by the legal industry (aka a “method or procedure meeting the standards of current practitioners”), then an attorney can’t charge substantially more to do it manually herself.

Simiarly, Virginia Rule 1.5 states that “[a] lawyer’s fee shall be reasonable.”⁴ The rule further states that “the factors to be considered in determining the reasonableness of a fee include the following: the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.”⁵ Arguably, the use of generative AI fundamentally alters the “time and labor required” component. As described above, a fee may no longer be “reasonable” under Rule 1.5 if it can be done much more efficiently using AI.

AI and the Democratization of Legal Information

The ethical mandate to keep fees reasonable is amplified by the fact that AI has democratized access to legal information. Attorneys once held a near-monopoly on specialized legal knowledge and research skills. However, modern AI tools can now perform legal research and first-draft document generation with speed and accuracy that were unimaginable a decade ago. When a client can access similar or functional information rapidly and cheaply, the lawyer’s fee must be commensurate with the value of the specialized services she is offering, not the outdated cost of the labor.

Further, when a lawyer does use AI, not all of her time can be charged to the client:

• A lawyer may not charge a client for time spent learning how to use a generative AI tool, as this knowledge is part of the lawyer’s duty to maintain competence under Model Rule 1.1.
• The cost of an AI tool that functions as general office maintenance (for example, Clio Manage) should be treated as overhead and not billed directly.⁶
• Only third-party, per-use services for a specific client matter (e.g., e-discovery review) are generally billable as an actual out-of-pocket expense.⁷

Malpractice Through Non-Use: The Inevitable Reckoning

When a lawyer chooses to ignore superior, cost-saving AI technology, he or she creates risks of both ethical violations and malpractice. While the current ethical focus has been on the misuse of AI (e.g., citing a “hallucinated” case, breaching confidentiality), the future of legal malpractice should increasingly center on the ethical failure of non-use—the refusal to adopt cost-reducing technology that is quickly defining the new standard of competent and diligent practice.

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*This article was written with the help of AI, specifically, Google Gemini organized my thoughts and content, and then drafted an outline for me.

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1. Virginia Rules of Professional Conduct 1.1, Comment 5. ↩︎
2. Id., Comment 6. ↩︎
3. ABA Model Rule 1.5(a)(1). ↩︎
4. Virginia Rule of Professional Conduct Rule 1.5(a). ↩︎
5. Id., Rule 1.5(a)(1). ↩︎
6. See American Bar Association’s Standing Committee on Ethics and Processional Responsibility, Formal Opinion 512, Generative Artificial Intelligence Tools (July 29, 2024), available at chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-512.pdf;Model Rule 1.5(a); ABA Formal Opinion 93-379. ↩︎
7. Id. ↩︎