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The Cost of Convenience: How AI Threatens the Right to Effective Assistance of Counsel
-- By YueYu - 19 Mar 2025
“Freedom and love are dear to me,
My life I give, sweet love, for thee,
Yet love I give for liberty.”
By Petőfi Sándor (translated by William N. Loew)
Liberty encompasses not only physical freedom but also the freedom to think. Yet today, our thinking is increasing restrained within the framework set by the so-called “Artificial Intelligence”. While our minds should remain an open field, we now may lose sight of all the possibilities beyond the tracks AI presents with us. We give liberty, not for life or love, but simply for “convenience”.
The Right to Effective Assistance of Counsel is Compromised When Lawyers Rely Blindly on AI.
It is convenient for lawyers to use AI for legal research, drafting documents, and even selecting jurors. Proponents of AI claim that using it can greatly improve efficiency, allowing lawyers to focus on tasks that require human intelligence, such as strategic thinking. This may be true, but when lawyers began to ask AI for answers to every question and blindly rely on the information and conclusions AI provides, they risk losing the ability to think.
Sixth Amendment guarantees the accused in criminal prosecutions the right to have the assistance of counsel. The Court has held that the right to counsel is the right to the effective assistance of counsel and it can be deprived simply by counsel’s failure to render adequate legal assistance. McMann v. Richardson; Strickland v. Washington
A lawyer who blindly relies on AI cannot provide adequate legal assistance. Information provided by AI can be wrong, fabricated or misleading. We’ve seen cases where lawyers use fabricated cases to support claims or arguments. For example, in 2023, two lawyers were sanctioned by the Southern District Court of New York for quoting six non-existent cases generated by ChatGPT in a legal brief. One of them testified, “I just was not thinking that the case could be fabricated, so I was not looking at it from that point of view.” While the judge found the lawyers acted in bad faith, I tend to believe that they just relied blindly on ChatGPT? without thinking.
The Right to Effective Assistance of Counsel is Undermined When Defendants Are Represented by a “Robot Lawyer”.
It’s convenient for criminal defendants turn to an “AI Lawyer” for legal advice, drafting legal documents, or even being “represented” by a robot lawyer. But does this meet the constitutional requirements? The Supreme Court has never ruled on how the Sixth Amendment as applied to non-human counsel. However, if we interpret the right to counsel from its plain meaning, it should be understood as the right to “human counsel”. A defendant choosing a robot lawyer could be seen as waiving the right to counsel. Such waiver, however, should be made knowingly, voluntarily and intelligently.
Many AI-based legal service providers promote that “AI lawyers” are just as competent as, or even more competent than, human lawyers due to their high efficiency and accuracy. In a complaint filed by the Federal Trade Commission (FTC) against DoNotPay, a company that promoted its online subscription service as “the world’s first robot lawyer”, the FTC asserted that the so-called robot lawyer failed to live up to claims that it was an adequate substitute for the expertise of a human lawyer. If a defendant waives the right to counsel based on such misleading claims, it is hard to say that such waiver was made intelligently.
There are other issues as well. When an accused is “represented” by a robot lawyer, attorney-client privilege may not apply to the information shared with the robot. This could allow the government to compel the robot lawyer's service provider to disclose confidential information.
Solutions
Stop Relying Blindly on AI
I am not a fan of the Russian proverb “Trust, but verify”. If something needs to be verified, it can’t be trusted. AI is merely a tool that assists lawyers in collecting and analyzing data, and it is lawyers’ responsibility to verify information generated by AI. In addition, we need to stop asking AI questions without first considering them by ourselves. It starts with each of us because we should not expect others to safeguard our freedom to think.
Regulating Service Providers
In February 2025, FTC finalized an order requiring DoNotPay? to stop making deceptive claims about the abilities of its “robot lawyer”. A disclaimer on the company’s website states, “DoNotPay is not a law firm, is not licensed to practice law, and is not equivalent to the services of a licensed lawyer.” While it’s unclear if this disclaimer was added due to the FTC order, its effectiveness is diminished by its small font and placement among other content. Aside from DoNotPay? , there are numerous other AI legal service providers on the market. These companies should be regulated to prevent false or misleading advertising, ensuring that defendants can make informed decisions about whether to waive their right to human counsel.
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