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Florida leads ethical AI adoption — New York Bar follows suit

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'The Florida Bar . . . takes its recommendations a step further, suggesting that lawyers obtain informed consent before utilizing such tools'

Pixel figure on an abstract background.Following in Florida’s footsteps, the New York State Bar Association has adopted guidelines for the ethical use of artificial intelligence.

The New York State Bar Association’s governing board approved a taskforce’s recommendations, including that New York lawyers notify clients if they use AI to prepare their case.

The report notes that California lawyers received the same recommendation, and that Florida’s are more comprehensive.

“The Florida Bar . . . takes its recommendations a step further, suggesting that lawyers obtain informed consent before utilizing such tools,” the report states.

The New York Bar’s House of Delegates received the “Task Force on Artificial Intelligence” report on April 6.

The taskforce included New York State Bar Association President Richard C. Lewis, law school deans, international lawyers, and lawyers whose practices focus on technology.

“Artificial intelligence is the latest technological evolution that at one moment awes us, and the next fills us with anxiety,” Task Force Chair Vivien Wesson told the Reuters news agency.

“We are aware of the enormous impact it will have on our profession but are also familiar with the many risks it poses regarding confidentiality,” Wesson said.

The Florida Bar, with more than 113,000 members, is steps ahead of its northern neighbor.

When he took office in June, President Scott Westheimer announced the creation of a “Special Committee on AI Tools & Resources.”

In December, the AI committee requested a formal ethics opinion to address everything from whether a lawyer should obtain a client’s informed consent, to AI’s impact on fees, advertising, duty to competence, and ethical responsibilities to main confidentiality and supervise non-lawyers.

The same month, the  AI committee proposed new comments to several Bar rules that the Board of Governors quickly approved.

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.”

In January, the Board of Governors unanimously approved Advisory Opinion 24-1, after the Board Review Committee on Professional Ethics posted a draft for public comment.

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.”

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.”

Meanwhile, the New York State Bar Association’s taskforce hit on many of the same themes.

A chapter of the 85-page report titled “Ethical Impact,” contains a section, “Duty of Competence/Techno Solutionism.”

It points to a recent LexisNexus survey that found only 43% of U.S. lawyers plan to use the technology.

“A refusal to use technology that makes legal work more accurate and efficient may be considered a refusal to provide competent legal representation,” the report states.

At the same time, it warns New York lawyers to resist “techno solutionism.” It defines the term as the “belief that every social, political and access problem has a solution based in development of new technology.”

Other sections of the New York taskforce report highlight, “Duty of Confidentiality & Privacy,” “Duty of Supervision,” “Unauthorized Practice of Law,” and “Case Law and Hallucinations.”

The report also notes that the ABA last year formed a special task force on artificial intelligence.

A group of ABA task force “special advisors” includes former U.S. Homeland Security Secretary Michael Chertoff, and Seth Waxman, a former U.S. Solicitor General who is now a partner and co-chair of the appellate and Supreme Court litigation practice at Wilmer Cutler Pickering Hale and Dorr.

The special advisor list also includes former U.S. Patent and Trademark Office director Michelle Lee and former U.S. Department of Homeland Security general counsel Ivan Fong.

 

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