Yesterday the American Bar Association published a formal opinion, declaring that under the ABA Model Rules of Professional Conduct, lawyers using generative AI have a “duty of competence” to develop an “understanding of the evolving nature of GAI.”
For this reason, InnovateUS--the non-profit, non-partisan online learning program we run--will launch its online course AI for public lawyers this fall.
While earlier experience with hallucinations led many legal organizations to remain silent or hostile toward the use of AI in law practice, this opinion letter acknowledges that “as [Generative AI] tools continue to develop and become more widely available, it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients.” [my emphasis]
The Opinion goes on to discuss the lawyer’s ethical obligations with regard to Generative AI (GAI), emphasizing that the lawyer remains responsible for his or her work and clarifying how existing rules of ethics apply in the world of generative AI:
Competence
Lawyers must have a reasonable understanding of the capabilities and limitations of the tools they use, keeping up with generative AI developments while never uncritically relying on generative AI’s outputs without verifying the results. “Lawyers’ uncritical reliance on content created by a GAI tool can result in inaccurate legal advice to clients or misleading representations to courts and third parties”
Confidentiality
Pursuant to the lawyer’s client confidentiality obligations, she must evaluate the risks of disclosing client information when using GAI tools. Thus, it is important for lawyers to understand the terms of use and privacy policies of GAI tools. Also the Opinion specifies that for “self-learning GAI tools,” she must obtain the “client's informed consent…before inputting information related to representation,” noting that the risks may change as the technology evolves.
Communication
Lawyers may need to disclose GAI use to clients in certain circumstances, especially if it influences significant decisions in the representation or is requested by the client. While the requirement “to disclose their GAI practices to clients or obtain their informed consent to use a particular GAI tool” will need to be determined on a case-by-case basis, the Opinion suggests that the engagement letter might be a logical place for such a disclosure.
Meritorious Claims and Candor
Lawyers must review GAI outputs for accuracy before submitting to courts and correct any errors, including misstatements of law and fact, made by GAI.
Supervisory Responsibilities
Recognizing that lawyers often have juniors working on client matters, the Opinion reminds lawyers to establish clear policies on GAI use and train their subordinates..
Fees
The Opinion helpfully clarifies that not only must fees and expenses related to GAI use be reasonable but lawyers must also bill for actual time spent on a matter, not the time they would have spent without the efficiency savings of GAI. Lawyers also cannot bill for the time spent learning about GAI.
My takeaway is that the ABA recognized the benefits of GAI but is requiring lawyers to:
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Obtain truly informed consent from the client, explaining all the risks involved.
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Ensure no confidential information is input into the system.
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Thoroughly verify all outputs for accuracy.
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Use the tool only for general tasks that don't involve specific client information.
Read the full opinion here.
