Artificial intelligence (AI) is permeating all aspects of the legal practice, and class litigation is no exception. Recognizing AI’s potentially harmful effects for legal clients, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility in 2024 provided guidance in a formal opinion for attorneys, signaling client disclosure and consent were required to employ AI in the representation. But the ABA’s opinion did not address or apply to class litigation, where putative class members and class counsel share no attorney-client relationship. Indeed, class members presently have little to no means to consent to or question class counsel’s prosecution of the litigation. AI can change this dynamic and revolutionize class litigation. A few scholars have already recognized AI’s potential to provide class members with a critical voice and facilitate the resolution of a greater volume of class claims. But while AI stands to benefit class members, it can also diminish the quality of their legal representation and negatively impact their litigation outcomes. Class counsel is required, under Rule 23(g) of the Federal Rules of Civil Procedure, to adequately represent the interests of absent class members, but with often conflicting interests, this directive is insufficient to protect the class from class attorneys’ negligent use of AI.

This Article proposes a novel test within Rule 23(g)’s existing framework to protect class members from class counsel’s AI misuses. It begins by addressing AI’s potential impact on the quality of class members’ representation, translating the promises and perils AI presents traditional litigants into the class environment. The Article then proposes an AI adequacy test aimed at ensuring that class counsel’s use of AI outputs in the litigation neither negatively affects class members’ legal representation nor otherwise harms class members. The test directs courts, empowered under Rule 23(g)’s broad authority, to inquire into class counsel’s past and intended use of AI in the litigation and assess whether such use has or will impair class members’ interests. The Article also applies the AI adequacy test to various hypotheticals and addresses potential criticisms. Ultimately, it demonstrates how the proposed AI adequacy test can provide class members similar protections as other litigants while incentivizing class counsel to responsibly employ AI to further class members’ interests.

Keep Reading Avoiding Artificial Adequacy in Class Litigation