Board to hear artificial intelligence guidance recommendations
When it meets December 1 in Destin, the Board of Governors will consider a special committee’s proposal for offering guidance on the use of artificial intelligence in the practice of law.
The Special Committee on AI Tools & Resources, formed by President Scott Westheimer this summer, is proposing a series of rule revisions that, if approved, would be forwarded to the Supreme Court for final consideration.
A proposed amendment to the final paragraph of the commentary to Bar Rule 4-1.1 (Competence) would make it clear that a lawyer’s understanding of the benefits and risks associated with the use of technology, “includes generative artificial intelligence.”
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 of confidentiality.”
A proposed amendment to Bar Rule 4-5.3 (Responsibilities Regarding Nonlawyer Assistants) would add a sentence to the first paragraph of the comment that would state, “A lawyer should also consider safeguards when assistants use technologies such as artificial intelligence” and within the first paragraph under the heading “Nonlawyers Outside the Firm,” would add “using generative artificial intelligence.”
Another proposed amendment, to Bar Rule 4-5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers), would add a sentence to the second paragraph of the comment that states, “consider safeguards for the firm’s use of technologies such as generative artificial intelligence.”
A staff analysis refers to an incident that has become a red flag for lawyers nationwide when the subject of artificial intelligence arises. It notes that “[l]awyers have improperly used generative AI” to their detriment.
“For example, a lawyer has been sanctioned in New York for filing a legal document generated by AI (ChatGPT) that included citations that were made up by the generative AI application,” the analysis states.
Bar rules “themselves are broad enough principles to address AI,” the analysis notes, “but commentary will alert Florida lawyers to their responsibilities regarding AI.”
In other action, the Board will be asked to affirm or reverse a Professional Ethics Committee decision that a law firm “may not ethically identify a nonlawyer as the firm’s ‘Chief Executive Officer’ (CEO), despite limitations on the nonlawyer’s authority.”
The inquiring firm asserted that the nonlawyer CEO would report to the firm’s supervising partner, will not have a policymaking function, will not supervise the practice of law, and will be paid a salary and bonuses unconnected to the law firm’s profits.
“Further, the inquiry states that the ‘position will not be known to the public other than on the firm’s website’ but concedes that it would be included on ‘business cards and possibly other written material.’”
The Professional Ethics Committee voted on June 23 to affirm a staff opinion that the use of the title by a nonlawyer would violate Bar Rule 4-8.6 (c) which provides that “[n]o person may serve as a partner, manager, director or executive officer of an authorized business entity that is engaged in the practice of law in Florida unless such person is legally qualified to render legal services in this state.”
The inquiring firm is asking for the board review, arguing that “application of the rule is limited…to only those instances where the nonlawyer employee engages in a policymaking function.”
In other business, the board will be asked to consider:
- Proposed amendments to the Preamble to Chapter 4, and Bar Rule 4-1.3 (Diligence), that would remove references to “zeal, zealous, and zealously” from commentary, and add a new comment explaining the historic change. The Real Property, Probate & Trust Law Section’s Professionalism and Ethics Committee has argued that “Z” words have been used to excuse bad lawyer behavior and that they carry a negative connotation.
- A proposed amendment to Bar Rule 4-4.4 (Respect for Rights of Third Persons). The Board Review Committee on Professional Ethics proposed amendment is meant to “expressly prohibit a lawyer from threatening to make or threatening to assist a client in making false social media posts as leverage in civil litigation,” according to a staff analysis.
- Comments to and potential adoption of Proposed Advisory Opinion 23-1. Proposed Advisory Opinion 23-1 addresses whether a Florida lawyer may be a passive investor in an “alternative business structure” that provides legal services in another state but does not maintain any presence in Florida or provide Florida legal services.
