ABA issues first ethics guidance on a lawyer’s use of AI tools
The American Bar Association Standing Committee on Ethics and Professional Responsibility released its first formal opinion covering the growing use of generative artificial intelligence in the practice of law, pointing out that model rules related to competency, informed consent, confidentiality, and fees principally apply.
Formal Opinion 512 states that to ensure clients are protected, lawyers and law firms using Gen AI must “fully consider their applicable ethical obligations,” which includes duties to provide competent legal representation, to protect client information, to communicate with clients, and to charge reasonable fees consistent with time spent using AI.
“This opinion identifies some ethical issues involving the use of GAI tools and offers general guidance for lawyers attempting to navigate this emerging landscape,” the formal opinion said. It added that the ABA committee and state and local bar association ethics committees will likely continue to “offer updated guidance on professional conduct issues relevant to specific AI tools as they develop.”
In January, The Florida Bar Board of Governors unanimously approved new guidelines for using generative AI in Advisory Opinion 24-1. Among other things, the Florida ethics opinion recommends that a lawyer obtain the “affected client’s informed consent prior to utilizing a third-party generative AI program if the utilization would involve the disclosure of any confidential information.”
A section of the opinion subtitled “Oversight of Generative AI” begins with a warning — “Lawyers who rely on generative AI for research, drafting, communication, and client intake risk many of the same perils as those who have relied on inexperienced or overconfident nonlawyer assistants.”
It concludes: “In sum, a lawyer may ethically utilize generative AI but only to the extent that the lawyer can reasonably guarantee compliance with the lawyer’s ethical obligations.”
Those obligations, according to the conclusion, include “the duties to confidentiality, avoidance of frivolous claims and contentions, candor to the tribunal, truthfulness in statements to others, avoidance of clearly excessive fees and costs, and compliance with restrictions on advertising for legal services.”
The 15-page ABA opinion specifically outlined that lawyers should be mindful of a host of model rules in the ABA Model Rules of Professional Conduct, including:
- Model Rule 1.1 (Competence). This obligates lawyers to provide competent representation to clients and requires they exercise the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In addition, the model rule states lawyers should understand “the benefits and risks associated” with the technologies used to deliver legal services to clients.
- Model Rule 1.6 (Confidentiality of Information). Under this model rule, a lawyer using Gen AI must be cognizant of the duty to keep confidential all information relating to the representation of a client, regardless of its source, unless the client gives informed consent. Other model rules require lawyers to extend similar protections to former and prospective clients’ information.
- Model Rule 1.4 (Communications). This model rule addresses lawyers’ duty to communicate with their clients and builds on lawyers’ legal obligations as fiduciaries, which include “the duty of an attorney to advise the client promptly whenever he has any information to give which it is important the client should receive.” Of particular relevance to Gen AI, Model Rule 1.4(a)(2) states that a lawyer shall “reasonably consult” with the client about the means by which the client’s objectives are to be accomplished.
- Model Rule 1.5 (Fees). This rule requires a lawyer’s fees and expenses to be reasonable and includes criteria for evaluating whether a fee or expense is reasonable. The formal opinion notes that if a lawyer uses a AI tool to draft a pleading and expends 15 minutes to input the relevant information into the program, the lawyer may charge for that time as well as for the time necessary to review the resulting draft for accuracy and completeness. But, in most circumstances, the lawyer cannot charge a client for learning how to work an AI tool.
“With the ever-evolving use of technology by lawyers and courts, lawyers must be vigilant in complying with the Rules of Professional Conduct to ensure that lawyers are adhering to their ethical responsibilities and that clients are protected,” Formal Opinion 512 concluded.
