Like it or not, artificial intelligence is not going away and it’s evolving—quickly. While AI talk has been brewing for quite some time, many of us assumed AI’s direct effect on our business was still years off. But over the last year the pace of development and use has accelerated exponentially and it is now obvious that lawyers must address numerous AI issues head on. Technological and societal changes often outpace the law, but lawyers remain ethically bound to stay abreast of changes in the law, including relevant technology. So, where do lawyers turn for ethical guidance when, as one authority has noted, “even for those who create generative AI products, there is a lack of clarity as to how it works?”
Recent guidance and resources
California’s Practical Guidance Executive Summary is one great resource. The Florida Bar Board of Governors’ Review Committee on Professional Ethics has issued Proposed Advisory Opinion 24-1. Also leading the charge, Michigan issued an ethics opinion, which confirms that judges have an ethical duty to understand artificial intelligence. Ethics counsel for the North Carolina State Bar also lists several ethics rules lawyers should be considering when using AI.
The American Bar Association recently created its Task Force on Law and Artificial Intelligence. The New York State Bar Association created their own AI Task Force as well. Stay tuned for additional guidance from local and state bar associations.
Watch out for these ethics rules
The Rules of Professional Conduct are written broadly enough to cover AI, even if the words “artificial intelligence” cannot be found in the rules or comments. While AI issues are easily found in several other rules, here are the most rules most often implicated:
- 1.1 (Competence) Lawyers have a duty to provide competent representation. Do not overly rely on AI. Before using an AI tool, lawyers should have a reasonable degree of understanding.
- 1.4 (Communication) Lawyers have an ethical duty to keep their clients reasonably informed, which will vary based on the circumstances and may include the use of AI.
- 1.5 (Fees) Lawyers should not overcharge clients for time saved by using AI. Lawyers should be clear about who is paying for the costs associated with AI.
- 1.6 (Confidentiality) Lawyers must protect the confidential information of their client, including from inadvertent disclosure. This may necessitate working with IT and asking for client consent in advance.
- 5.1 and 5.3 (Supervision) Lawyers must ensure proper training, supervision, and adherence to policies.
- 8.4 (Misconduct) AI systems may be trained on biased information. Lawyers must be watchful in identifying and addressing biases in AI tools to make certain they provide fair and unbiased legal services to their clients. Lawyers should continue learning about AI biases and their impact on the legal practice.
A few other practical tips
- Start looking for changes in local rules and standing orders governing use of AI in the courtroom. For instance, the United States Court of Appeals for the Fifth Circuit has proposed to amend its rule to require lawyers and pro se parties alike to certify that no generative AI program was used to draft the document presented for filing, but if generative AI was used, that a human has reviewed the material for accuracy and approved it as well.
- Always review documents and pleadings for accuracy before submitting to your client or the court!
- AI for legal purposes is not cheap. It can be priced many different ways that cost may increase over time. So it is now the time to consider how AI will factor into the firm budget and pricing structures. That also means that prudent lawyers will discuss he use of AI with their clients, including an understanding as to who is footing the bill.
- Pay close attention to detect AI provisions in agreements, engagement letter, and outside counsel guidelines.
- Watch out for Unauthorized Practice of Law (UPL) issues by leaving tasks that require legal judgment solely up to AI.