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Board of Governors adopts ethics guidelines for generative AI use

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F. Scott Westheimer

Scott Westheimer

Florida lawyers have new guidelines for using generative AI after the Board of Governors voted unanimously January 19 to approve Ethics Advisory Opinion 24-1.

Immediately after the vote in a Tallahassee conference room, President Scott Westheimer thanked Board Review Committee on Professional Ethics Chair Brian Burgoon for the panel’s work.

Westheimer said the technology dominates most conversations as he visits with lawyers and judges across the state.

“You can’t imagine the phone calls we get on this issue,” he said. “Every place I go, a DCA judge comes up to me and says a lawyer filed a brief using ChatGPT and there were errors in it.”

Advisory Opinion 24-1 originated in December with a formal request by the Special Committee on AI Tools & Resources. Westheimer announced that he was forming the panel at his swearing in ceremony in June.

The special AI committee earlier this year proposed new comments to several Bar rules the Board of Governors voted unanimously to approve in December.

For example, a proposed amendment to Bar Rule 4-1.6 (Confidentiality of Information) would add a warning to a portion of the commentary subtitled “Acting Competently to Preserve Client Confidentiality.” The proposed sentence would state, “For example, a lawyer should be aware that generative artificial intelligence may create risks to the lawyer’s duty to confidentiality.”

The proposed amendments to the commentary are pending before the Supreme Court. Bar rules are binding, and the commentary is considered aspirational.

Unlike Bar Rules, advisory opinions are nonbinding.

The AI committee requested that the opinion address everything from whether a lawyer should obtain a client’s informed consent before using it, to AI’s impact on fees, advertising, duty to competence, and ethical responsibilities to maintain confidentiality and supervise nonlawyers.

The BRCPE advertised a draft opinion in the Bar News in November and solicited public comments. It generated about a dozen responses, with only a few arriving after the January 2 deadline, Burgoon said.

After lengthy discussions about all comments received, the review committee voted unanimously January 18 to forward to the board a version of the proposed opinion that is substantially the same as the advertised draft.

Burgoon told the board that the opinion does not address specific generative AI platforms, such as Chat GPT-4, or the Bing search engine, because the technology is changing too rapidly.

The opinion does not recommend banning AI and refers to its potential to save lawyers and clients time and money.

Among other things, the 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.”

At least one commenter disagreed with the recommendation, arguing that lawyers aren’t required to obtain a client’s informed consent before using other legal research tools, such as Westlaw or Lexus.

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.”

The conclusion goes on to say that the obligations 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.”

In a related action, the board approved a proposal by Special AI Committee Co-Chair Gordon Glover to ask the Florida Courts Technology Commission to post a warning on the E-Filing Portal regarding the potential for errors in AI-generated documents.

In other business, the board voted without objection to approve a Program Evaluation Committee proposal to amend Rule 6-3.5 (Standards for Certification.)

The proposed amendment would add a new subdivision (f) that would define a “good cause waiver for any portion of the applicable certification standards.”

The subdivision would read, “in determining a good cause waiver under this chapter, the Board of Legal Specialization and Education and applicable certification committee must consider the applicant’s special knowledge, skills, and proficiency in the certification area; the nature and complexity of matters in the certification area handled by the applicant; the number of matters in the certification area handled by the applicant over the course of the applicant’s career; and any career or other factors relevant to the applicant’s request for a waiver of compliance.”

Lawyers in various practice areas who seek board certification or recertification have argued that meeting some of the standards has become more difficult as the state grows, and court practices change.

For example, appellate lawyers say district courts of appeal grant fewer oral arguments. Family law practitioners say completing a minimum number of trials runs counter to Family Law Section’s Bounds of Advocacy, which instructs lawyers to resolve cases “without court intervention if possible.” They stress that the goal of the collaborative law process is to avoid litigation.

The proposed amendment to Rule 6-3.5 goes next to the Supreme Court for final consideration.

In other business, the board:

  • Voted to accept the annual audit of The Florida Bar finances for FY 2022-23 by the firm Mauldin and Jenkins. “No deficiencies or matters of concern were noted,” said Audit Committee Chair Nikki Lewis Simon.

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