By Hooman Yazhari & Enrico Trevisani
The rapid advancement of generative artificial intelligence (GAI) technologies presents both opportunities and challenges for the lawyers. Given the speed with which GAI is being leveraged among law firms, the American Bar Association (ABA) just issued Formal Opinion 512, providing critical guidance on the ethical use of these tools in legal practice. No doubt about it, GAI can enhance efficiencies and accuracy in tasks such as legal research, contract review, and predictive analytics. But with the good come significant ethical concerns—many of which are discussed here—along with some insight into how legal professionals can circumvent the ethical pitfalls associated with ChatGPT and the like.
Competence: Mastering the New Tools
One of the foundational principles in the ABA's guidance is the duty of competence. Lawyers must ensure they have a reasonable understanding of the GAI tools they rely upon, including capabilities and limitations. This does not mean that attorneys need to become AI experts. Instead, they must be aware of how the technology works, what data it relies on, and the potential risks associated with its use.
Competence also involves staying updated with technological advancements. As GAI evolves at an extraordinary pace, lawyers must continuously educate themselves about new features, risks, and ethical considerations. This ongoing education can be achieved through self-study, attending continuing legal education (CLE) programs, or consulting with experts in the field.
Importantly, lawyers should not rely solely on the substantive work product of ChatGPT or similar platforms without independent verification. The ABA highlights the risks of "hallucinations" in GAI—situations where the AI generates plausible-sounding but inaccurate or fabricated information. For this reason, attorneys must carefully evaluate and verify AI-generated content before relying on it in legal documents, client communications, or court submissions. Failing to do so could result in inaccurate legal advice or misleading representations, potentially violating the duty of competence.
Confidentiality: Safeguarding Client Information
Confidentiality is a cornerstone of the attorney-client relationship, and the use of GAI tools introduces certain red flags in this area. Consequently, lawyers must be mindful of the risks of disclosing confidential client information when using GAI. This is especially the case when employing self-learning AI systems that could potentially store and reuse information from multiple sources.
By virtue of the confidentiality conundrum, the ABA emphasizes the importance of informed consent in situations where client information might be disclosed. This means legal professionals should explain to clients the potential hazards and benefits of using GAI tools, including any privacy concerns. As a practical matter, the discussion between attorney and client must be thorough and tailored to the specific circumstances of the case and the technology in question.
It is important to note that general boilerplate language in engagement letters may not suffice. Clients need to understand the specific risks associated with the use of GAI, such as the potential for inadvertent disclosure of sensitive information. Likewise, clients must be assured that appropriate safeguards are in place to protect their data, which may involve consulting with IT professionals or cybersecurity experts.
Communication: Transparency with Clients
Effective communication is vital in maintaining trust and ensuring that clients are fully informed about their legal representation. According to the ABA, lawyers must consider whether their use of GAI tools should be disclosed to clients under Model Rule 1.4, which covers the duty to communicate, even in the absence of privacy concerns.
Of course, the necessity of disclosure depends on various factors, including the significance of the GAI tool's output in the representation and the potential impact on the client's decision-making. For example, if a GAI tool is used to generate an analysis that significantly influences a case strategy, the client should be informed. Similarly, if the use of GAI affects the reasonableness of legal fees, this should be communicated to the client as well.
Bottom line, even when not required, voluntary disclosure about the use of GAI tools can foster transparency and trust. Including information about GAI use in engagement agreements can help set clear expectations and ensure clients are comfortable with the technology being employed.
Meritorious Claims and Candor: Upholding Integrity
In litigation, the use of GAI tools must align with ethical standards, particularly concerning meritorious claims and candor toward the tribunal. Attorneys are responsible for ensuring that any AI-generated content used in court filings or communications is accurate and truthful. This includes verifying citations, ensuring that legal arguments are well-founded, and avoiding the submission of misleading or false information.
The ABA warns against relying on GAI tools without proper oversight, as doing so could lead to violations of ethical duties. For instance, if ChatGPT generates an inaccurate legal analysis or cites non-existent case law, the lawyer must correct these errors before submitting any documents to the court. The responsibility for accuracy ultimately rests with the lawyer, not the AI tool.
Supervisory Responsibilities: Ensuring Compliance
Legal professionals in supervisory roles have a duty to ensure that all lawyers and non-lawyers in their firm adhere to ethical standards when using GAI. This includes establishing clear policies on the permissible use of such tools, providing necessary training, and appropriately supervising work.
Training should cover the ethical and practical aspects of GAI and hit upon the technology's capabilities and limitations. Attorneys should also be aware of any and all security measures in place to protect client information and the potential risks associated with GAI use.
Fees: Transparency and Reasonableness
The ABA's guidance also addresses the issue of billing for the use of GAI tools. Lawyers must ensure that fees charged for GAI-related work are reasonable and transparent. This includes clearly communicating the basis for any charges related to GAI and ensuring that clients are not overcharged for the efficiency gains provided by these tools.
For example, if a GAI tool enables a lawyer to complete a task more quickly than traditional methods, it may be unreasonable to charge the same fee as if the work had been done manually. Attorneys should also avoid billing clients for general overhead costs associated with GAI tools, such as subscriptions or software maintenance, unless explicitly agreed upon.
Final Thoughts
The ABA's Formal Opinion 512 makes clear that lawyers must navigate the evolving landscape of AI technology with a commitment to competence, confidentiality, transparency, and integrity. By doing so, they can harness the benefits of GAI tools while upholding the highest ethical standards in their professional conduct.
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.
