Lawyers and AI: How Lawyers’ Use of Artificial Intelligence Could Implicate the Rules of Professional Conduct
Jonathan Grabb: “This may go without saying for many lawyers, but it is worth repeating: every lawyer is responsible for their own conduct. While a chatbot may be able to draft a document in mere seconds, any lawyer who uses AI assistance is still responsible for generating work product that is legally and factually accurate, competent, and meritorious.”
From chatbots to image generators, news outlets have been inundated with stories discussing the implications of artificial intelligence or “AI” programs.
Though the results appear mixed, ChatGPT, a free AI chatbot, has already managed to pass law school exams[1] while Midjourney, an AI image generator, won first prize in the Colorado State Fair’s digital art competition.[2] Developments in AI have the potential to irrevocably change numerous industries and the practice of law is no exception. Stories regarding these new A.I. programs naturally lead lawyers to additional questions: Can I rely on AI programs to draft my briefs?[3] Can AI programs cause copyright problems?[4]
Though The Florida Bar has not published an opinion addressing the ethical implications of lawyers using AI to assist in the practice of law, the adoption of other new technologies offers helpful guidance. Existing opinions regarding e-filing, cloud computing, online research tools, metadata, and more, provide useful context. With that in mind, here are a few points to consider before you let an A.I. program draft your next brief:
- Lawyers are ethically responsible for the services they provide
This may go without saying for many lawyers, but it is worth repeating: every lawyer is responsible for their own conduct. While a chatbot may be able to draft a document in mere seconds, any lawyer who uses AI assistance is still responsible for generating work product that is legally and factually accurate, competent, and meritorious.
Rule 4-5.2 of the Rules Regulating The Florida Bar provides that every lawyer is bound by the Rules of Professional Conduct regardless of whether they are acting at the direction of another lawyer. Law firm partners and other supervisory lawyers must also provide reasonable policies and efforts to ensure that other lawyers in the firm comply with the Rules of Professional Conduct.[5]
Providing competent services often requires more knowledge than simply passing a law school exam. “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice… including an understanding of the benefits and risks associated with the use of technology[.]”[6]
Rather than relying on an AI program for a final product, it may be best to limit use to first drafts or a potential framework.[7] Even as these technologies improve, a lawyer “must review and be responsible for the work product of” an AI program just as a lawyer must do for the work of any nonlawyer staff.[8]
- AI services may “create” facts
Rule 4-3.3 prohibits a lawyer from knowingly “making a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal[.]” Similarly, when representing a client, “a lawyer shall not knowingly… make a false statement of material fact or law to a third person[.]”[9]
AI programs do not always cite to their sources, and some AI programs have been caught making “’surprising mistakes’ with basic math”[10] or even creating facts (or polling data) that doesn’t exist.[11]
Factual misstatements to the court or to an opposing party can lead to major consequences, including disbarment or suspension.[12] Further, lawyers are obliged to “inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions.”[13] This means that relying on AI to provide an accurate depiction of the facts and law is, at best, a risky proposition.
- Lawyers must maintain the confidentiality of client information
Lawyers are prohibited from voluntarily disclosing any information relating to the representation of a client absent the client’s informed consent or an applicable exception in the confidentiality rule.[14] While a lawyer is “impliedly authorized to make disclosures about a client when appropriate in carrying out the representation,” that authorization is still subject to the “client’s instructions or special circumstances [which] limit that authority.”[15]
Consistent with these obligations, The Florida Bar’s Professional Ethics Committee advised that a lawyer may utilize cloud computing services provided that the lawyer “take[s] reasonable precautions to ensure that confidentiality of client information is maintained, that the service provider maintains adequate security, and that the lawyer has adequate access to the information stored remotely.”[16] The lawyer must also research the cloud computing service prior to use[17] and assure that files stored electronically are “readily reproducible and protected from inadvertent modification, degradation or destruction.”[18]
Additionally, lawyers are cautioned to avoid inadvertently disclosing confidential client information. Recommended practices include removing metadata from documents,[19] sanitizing storage and media devices before disposition,[20] and ensuring that communications are encrypted, as appropriate.[21]
Given that many AI programs frequently rely on user input and proprietary methods to generate responses, it may be difficult or impossible to determine whether client information is kept confidential when shared with an AI program. Further, it is unclear whether sharing information with an AI program would be discoverable and would waive claims of attorney-client privilege. Absent answers to these questions, lawyers should exercise extreme caution when sharing client information with AI programs and should carefully explain the implications of these disclosures when seeking a client’s informed consent.
- Whose work is this?
Another concern regarding AI generated documents: who “created” them and who owns them? These questions don’t lend themselves to easy answers when AI programs such as chatbots can generate essays, briefs, motions, or images from a simple 10-word prompt and may not attribute their sources.
To date, the U.S. Patent & Trademark Office (USPTO) has declined to issue patents to AI programs and the U.S. Copyright Office (USCO) has declined to grant copyright registration to AI generated artwork.[22] In the first instance, the USPTO’s decision was affirmed by the United States Court of Appeals, Federal Circuit, on the basis that the statute “requires an ‘inventor’ to be a natural person[.]”[23] Similarly, the USCO concluded that artwork created by AI “lacks the human authorship necessary to support a copyright claim,” and was subsequently affirmed by the Copyright Review Board.[24]
Conversely, are AI programs plagiarizing the work of others? Some artists believe so and have filed suits alleging that AI generated artwork does not properly credit or reimburse its sources.[25] Given that Florida lawyers have been sanctioned for plagiarism,[26] utilizing an A.I. program to draft documents may not be risk free.
- Chatbots require supervision, too
Though they may not be as advanced as the chatbots offered by ChatGPT or Microsoft Bing, many lawyers and law firms already utilize automated chat services for those who visit the lawyer’s website. As these chatbots become more advanced, lawyers should be wary that these services may unintentionally create a lawyer-client relationship and the ethical obligations it entails.
A lawyer-client relationship exists whenever a person consulting with a lawyer develops a reasonable subjective belief that they are receiving the benefit of a lawyer-client relationship.[27] The lawyer’s intent is irrelevant in this analysis,[28] and the creation of a lawyer-client relationship does not require that the lawyer receives a fee.[29] Even when providing services that are “distinct from legal services,” a lawyer is subject to the Rules Regulating The Florida Bar “if the lawyer knows or reasonably should know that the recipient might believe [they are] receiving the protection of a client-lawyer relationship” and the lawyer has failed to make reasonable efforts to avoid any misunderstanding by the recipient.[30] In turn, these unintended lawyer-client relationships create a variety of ethical concerns, including most notably, conflicts of interest.
Similarly, a consultation may occur pursuant to Rule 4-1.18 if the chatbot on a lawyer’s website “specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.”[31] These consultations are confidential and can create conflicts of interest for the relevant lawyer or law firm.[32]
Proceed with caution
Many questions regarding a lawyer’s use of A.I. programs are currently unanswered and may remain unanswered for the indefinite future. For this reason, lawyers are advised to maintain a healthy dose of skepticism regarding AI programs and to proceed with caution. While these programs may someday revolutionize the practice of law, a lawyer’s ethical obligations have not changed. Duties of candor, competence, and confidentiality have remained steadfast in the face of prior technological innovations and should be expected to guide the practice of law indefinitely into the future.
[1] Karen Sloan, Some law professors fear ChatGPT’s rise as other see opportunity, Reuters (January 10, 2023, 7:19 PM EST), https://www.reuters.com/legal/legalindustry/some-law-professors-fear-chatgpts-rise-others-see-opportunity-2023-01-10/; Samantha Murphy Kelly, ChapGPT passes exams from law and business schools, CNN (January 26, 2023, 1:35 PM EST), https://www.cnn.com/2023/01/26/tech/chatgpt-passes-exams/index.html.
[2] Kevin Roose, An A.I.-Generated Picture Won an Art Prize. Artists Aren’t Happy, The New York Times (September 2, 2022), https://www.nytimes.com/2022/09/02/technology/ai-artificial-intelligence-artists.html.
[3] Blair Chavis, Does ChatGPT produce fishy briefs?, ABA Journal (February 21, 2023, 1:58 PM CST), https://www.abajournal.com/web/article/does-chatgpt-produce-fishy-briefs?.
[4] Ella Feldman, Are A.I. Image Generators Violating Copyright Laws?, Smithsonian Magazine (January 24, 2023), https://www.smithsonianmag.com/smart-news/are-ai-image-generators-stealing-from-artists-180981488/.
[5] Rule 4-5.1, R. Reg. The Fla. Bar.
[6] Comment to Rule 4-1.1, R. Reg. The Fla. Bar.
[7] See Sloan, supra.
[8] See Rule 4-5.3(c).
[9] Id.
[10] Kelly, supra.
[11] John Simon, The Creator of ChatGPT Thinks AI Should Be Regulated, Time (February 5, 2023, 9:00 AM EST), https://time.com/6252404/mira-murati-chatgpt-openai-interview/; Amelia Thompson-DeVeaux and Curtis Yee, ChatGPT Thinks Americans Are Excited About AI. Most Are Not., (February 24, 2023, 6:00 AM EST), https://fivethirtyeight.com/features/chatgpt-thinks-americans-are-excited-about-ai-most-are-not/.
[12] See The Florida Bar v. Dove, 985 So. 2d 1001 (Fla. 2008) (lawyer suspended for 3 years for, among other violations, failing to provide all material facts in an ex parte hearing and filing documents containing material misstatements, thereby obtaining an order terminating parental rights that family court would not otherwise have granted); The Florida Bar v. Koko Head, 84 So.3d 292 (Fla. 2012) (lawyer suspended for 91 days for dishonest conduct, including sending a notice to a tenant with a fictitious case number, submitting a false affidavit to the court, and testifying untruthfully in the disciplinary matter); The Florida Bar v. Cox, 794 So. 2d 1278 (Fla. 2001) (court notes that disbarment is the presumptive sanction, but suspended prosecutor for one year in light of mitigating factors after prosecutor failed to disclose true identity of prosecution witness prior to and during trial); The Florida Bar v. Catalano, 685 So. 2d 1299 (Fla. 1996) (attorney disbarred for advising client to transfer money to attorney’s trust account after client ordered not to dispose of any property by court, then misrepresented amount of transfer to court).
[13] Comment to Rule 4-3.1, R. Reg. The Fla. Bar.
[14] Rule 4-1.6 and Comment, R. Reg. The Fla. Bar.
[15] Id.
[16] Florida Bar Ethics Opinion 12-3 (2013).
[17] Id.
[18] Florida Bar Ethics Opinion 06-1 (2006).
[19] Florida Bar Ethics Opinion 06-2 (2006).
[20] Florida Bar Ethics Opinion 10-2 (2010).
[21] Florida Bar Ethics Opinion 00-4 (2000).
[22] Jane Recker, U.S. Copyright Office Rules A.I. Art Can’t Be Copyrighted, Smithsonian Magazine (March 24, 2022), https://www.smithsonianmag.com/smart-news/us-copyright-office-rules-ai-art-cant-be-copyrighted-180979808/.
[23] Thaler v. Vidal, 43 F.4th 1207, 1209 (Fed. Cir. 2022).
[24] A Recent Entrance to Paradise, USCO Correspondence ID 1-3ZPC6C3; SR # 1-7100387071 (Copyright Rev. Bd., February 14, 2022), available at: https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf.
[25] Feldman, supra.
[26] The Florida Bar v. Gonzalez, SC08-434 (Fla. 2008) (lawyer was suspended from the practice of law for violating rule 4-8.4(c), which prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, following the lawyer’s submission of an article that copied the writing of other published authors without permission or attribution).
[27] Dean v. Dean, 607 So.2d 494 (Fla. 4th DCA 1992), rev. dismissed, 618 So.2d 208 (Fla. 1993) (whether person who consults attorney is client for purposes of evidence code depends on subjective intent of person seeking consultation rather than the lawyer’s conduct); Bartholomew v. Bartholomew, 611 So.2d 85 (Fla. 2d DCA 1992) (test for determining existence of attorney-client relationship is a subjective one hinging upon client’s belief that he is consulting an attorney in that capacity and his manifested intention is to seek professional legal advice, but the belief must be a reasonable); Rule 4-5.7(a-b), Rules Regulating The Florida Bar.
[28] Id.
[29] The Florida Bar v. King, 664 So.2d 925, 927 (Fla. 1995).
[30] Rule 4-5.7(b, d), R. Reg. The Fla. Bar.
[31] Comment to Rule 4-1.18, R. Reg. The Fla. Bar.
[32] Id.
