In its first major pronouncement on the ethics of using generative AI in law practice, the American Bar Association (ABA) has issued Formal Opinion 512. According to the opinion, lawyers are not required to become experts in generative AI but must develop a reasonable understanding of its capabilities and limitations. This includes an awareness of how the technology might affect their practice and client interactions.
The ABA’s Standing Committee on Ethics and Professional Responsibility emphasizes that the rapid development of generative AI (gen AI) requires continuous updates and guidance to address evolving professional conduct issues. The committee suggests that state and local bar association ethics committees will likely provide further updates as new generative AI tools enter the market and become more integrated into legal practices.
The core ethics issues discussed in the opinion align with those commonly raised in previous opinions on legal technology, such as competence, confidentiality, communication with clients, supervisory responsibilities, and fees. One new consideration unique to generative AI is the duty of candor towards the tribunal. Lawyers must verify the accuracy of AI-generated outputs before submitting them in judicial proceedings to avoid inaccurate citations or misleading arguments.
Duty of Technological Competence
The opinion underscores a lawyer’s duty of technological competence under Model Rule 1.1, clarifying that while lawyers do not need to be generative AI experts, they should have a reasonable understanding of how the tools work. This understanding can be gained firsthand or through consultations with experts. The duty also extends to staying updated on technological advancements and remaining vigilant about potential benefits and risks.
Regarding AI’s known propensity to produce inaccurate results or “hallucinate,” the ABA advises that lawyers should never rely wholly on AI outputs without independent verification. The level of necessary verification depends on the tool in question and the specific legal task it is used for. For instance, tools designed specifically for legal practice might require less oversight if the lawyer has prior positive experience with the tool.
The ABA also notes that there might come a time when the use of generative AI will be necessary for lawyers to competently complete certain client tasks. Until then, lawyers are encouraged to familiarize themselves with these tools to make informed decisions about their use.
Other Ethics Issues with Generative AI
- Confidentiality: The opinion states that a lawyer’s duty to protect client information extends to the use of generative AI. It advises lawyers to evaluate the risk of disclosing confidential information and ensure any input into AI tools is safeguarded. Lawyers should review the terms and privacy policies of AI tools and may need to obtain informed client consent, particularly when using self-learning AI tools.
- Communication: Under Model Rule 1.4, lawyers might need to inform clients about their use of generative AI tools. The requirement for disclosure depends on the particular circumstances of each case and whether the use of the tool impacts the client’s interests.
- Supervisory Responsibilities: Model Rules 5.1 and 5.3 require lawyers to ensure their firms adhere to ethical standards when using technology. This includes establishing clear policies, providing training, and monitoring compliance. This responsibility extends to third-party providers, who must also comply with confidentiality and ethical standards.
- Fees: According to Model Rule 1.5, lawyers may charge clients for the time spent using generative AI tools, but fees must be reasonable and reflect actual time spent. It would be unreasonable to charge the same fixed fee when using AI compared to manual work. Moreover, lawyers cannot charge clients for time spent learning how to use AI tools unless specifically requested by the client.
The ABA concludes by reminding lawyers of their ongoing responsibility to stay vigilant in the face of evolving technology. As the legal profession becomes more intertwined with technological advancements, attorneys must ensure they comply with the Rules of Professional Conduct to protect client interests effectively.
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