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August 12th, 2024
The American Bar Association (ABA) issued ethics guidance concerning the use of generative artificial intelligence (GAI), i.e. systems that are trained on large data sets to create something new.
Traditional artificial intelligence (AI) has the capability to learn from data and make decisions or predictions based on that data, e.g. Siri, Alexa, or Google’s search algorithm. GAI however, is a form of AI that can create original content, including text, images, audio, video, and software code in response to a user’s prompts and questions. GAI tools have been known to assist lawyers with legal research, document review, due diligence, regulatory compliance, and drafting letters, and legal documents. As such, the ABA’s Standing Committee on Ethics and Professional Responsibility has identified some ethical issues involving the use of GAI tools and offers general guidance for lawyers attempting to navigate this emerging landscape.
Model Rule 1.1 – lawyers must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use. Lawyers should consider reading about GAI tools targeted at the legal profession, attending relevant continuing legal education programs, and, consulting others who are proficient in GAI technology. Importantly, lawyers must recognize the inherent risks of GAI, e.g., inaccurate output, and “hallucinations,” i.e., ostensibly plausible responses that have not basis in fact. “Lawyers may not abdicate their responsibilities by relying solely on a GAI tool to perform tasks that call for the exercise of professional judgment or participation.”
Model Rules 1.6, 1.9(c), and 1.18(b) – Lawyers have a responsibility to generally keep confidential all information relating to the representation of a client, regardless of its source. Accordingly, lawyers must evaluate the risks of inadvertent disclosure of client information associated with GAI tools, both to persons inside and outside the lawyer’s firm or organization. Therefore, a client’s informed consent is required prior to inputting information relating to the representation into the GAI tool. For the consent to be informed, the client must have the lawyer’s best judgment about why the GAI tool is being used, the extent of and specific information about the risk, including particulars about the kinds of client information that will be disclosed, the ways in which others might use the information against the client’s interests, and a clear explanation of the GAI tool’s benefits to the representation.
Model Rule 1.4 – Lawyers have a responsibility to communicate with their clients. That ABA acknowledges that the facts of each case will determine whether Model Rule 1.4 requires lawyers to disclose their GAI practices to clients or obtain their informed consent to use a particular GAI tool. Depending on the circumstances, client disclosure may be unnecessary. However, lawyers must disclose their GAI practices if asked by a client how they conducted their work, and they must consult clients when the use of a GAI tool is relevant to the basis or reasonableness of a lawyer’s fee.
Model Rules 3.1, 3.3, and 8.4(c) – Lawyers have a responsibility to make meritorious claims, and shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Accordingly, GAI output must be carefully reviewed to ensure that assertions made to the court are not false.
Model Rules 5.1 and 5.3 – Lawyers have a responsibility to manage and supervise subordinate lawyers, and non-lawyers. As such managerial lawyers must establish policies regarding the law firm’s permissible use of GAI, and supervisory lawyers must make reasonable efforts to ensure that the firm’s lawyers and non-lawyers comply with their professional obligations when using GAI tools.
Model Rule 1.5 – Lawyer’s fees and expenses shall be reasonable. GAI tools may provide lawyers with a faster and more efficient way to render legal services to their clients, but lawyers who bill clients an hourly rate for time spent on a matter must bill for their actual time. The factors set forth in Rule 1.5(a) also apply when evaluating the reasonableness of charges for GAI tools when the lawyer and client agree on a flat or contingent fee. To the extent a particular tool or service functions similarly to equipping and maintaining a legal practice, a lawyer should consider its cost to be overhead and not charge the client for its cost absent a contrary disclosure to the client in advance. However, when a lawyer uses a third-party provider’s GAI service to review thousands of voluminous contracts for a particular client and the provider charges the lawyer for using the tool on a per-use basis, it would ordinarily be reasonable for the lawyer to bill the client as an expense for the actual out-of-pocket expense incurred for using that tool.
The ABA’s formal opinion can be accessed here.
