The New York State Bar Association last month published a set of guidelines for the ethical use of artificial intelligence technologies in practice of law. The guidelines, which were included in a task force report, did not break any new ethical ground. They were, instead, a reminder of the numerous ethical obligations that already inform – and constrain – an attorney’s use of technology to handle client matters.

The Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence (April 2024) noted that many of the ethical questions raised by artificial intelligence technologies can be resolved by reference to existing guidance on lawyer competence, on the confidentiality of client information, and the imperative that lawyers must always exercise independent legal judgment on behalf of their clients.

No AI Disclosure Requirement

Unlike recent ethical guidance from bar groups in California and Florida, the New York guidelines do not direct attorneys to inform, or obtain consent, from clients when artificial intelligence will be used. New York task force members appeared to believe that disclosure of AI use is unnecessary, in view of other ethical obligations owed to the client. “Whether an attorney informs the client or obtains formal consent, the ethical obligation to protect client data remains unchanged from the introduction of generative AI tools,” the task force wrote.

Regarding the somewhat related issue of court-ordered attorney certifications and disclosures when artificial intelligence technologies are used to produce legal pleadings, the task force expressed the hope that further study – and revised local court rules, if necessary – might obviate the need for individual judge-authored solutions. The task force asked: Do these court orders implicate protections for attorney work product? Is a court’s reference to “artificial intelligence” broad enough to require disclosure of technologies used to hunt through electronically stored information during pretrial discovery?

The Report…noted that many of the ethical questions raised by artificial intelligence technologies can be resolved by reference to existing guidance on lawyer competence, on the confidentiality of client information, and the imperative that lawyers must always exercise independent legal judgment on behalf of their clients.

“[W]ith better understanding of the new and emerging technologies, and with more precision in language when referencing these emerging technologies,” the task force wrote, “the language in the local rules will more precisely match and address the concerns of the court and so, achieve what these judges’ orders were designed to do.”

Much like the commercial Internet that preceded it nearly 50 years ago, it’s difficult to overestimate the impact that artificial intelligence technologies will have on the practice of law. Deposition and pretrial discovery processes are already seeing AI-driven improvements, part of a larger trend of rapid technological change throughout the justice system. The New York Bar’s report is the latest attempt by the legal profession to stay ahead of the curve and prevent – rather than react to – whatever legal and ethical problems are posed by the adoption of generative artificial intelligence tools in the practice of law.

Legal Ethics and Artificial Intelligence

The task force report ticks through now-familiar “AI ethics” topics such as the duty of technology competence, confidentiality of data fed into AI technologies, and the need to communicate AI use with clients. Also mentioned are reminders that AI-driven marketing tools cannot be used to deliver deceptive advertising to prospective clients.

• Attorney competence. Lawyers have an ethical duty to understand the risks, benefits, and ethical implications associated with the use of artificial intelligence.
• Scope of representation. Lawyers should disclose in the client engagement letter that artificial intelligence technologies may be used in representation of the client.
• Diligence. Lawyers should consider whether artificial intelligence will, in fact, improve representation of client’s interests.
• Communication. Lawyers, when communicating with clients, must not rely solely on content generated by artificial intelligence.
• Advertising. Communications with the public must be truthful and non-deceptive – including communications generated by artificial intelligence technologies.
• Solicitation and recommendations. Lawyers should not use artificial intelligence technologies to engage in robo-calling or other forms of client solicitation.
• Legal fees. The use of, or failure to use, artificial intelligence during representation of the client is a factor in determining whether fees charged are reasonable.
• Confidentiality. Lawyers should adopt safeguards to protect client information supplied as inputs to artificial intelligence technologies. Lawyers should seek client consent for sharing client confidential information with artificial intelligence technologies. Lawyers should obtain assurances from artificial intelligence technology vendors that their technologies will protect client confidential information.
• Independent professional judgment. Lawyers should maintain independent judgment on client matters, and should not rely exclusively on output from artificial intelligence technologies.
• Unauthorized practice of law. Artificial intelligence technologies should augment – not replace – lawyer’s independent professional judgment.
• Conflicts of interest. Lawyers should identify and address any conflicts of interest that may result from use of artificial intelligence technologies.
• Supervisory responsibilities. Supervising lawyers have a duty to ensure that subordinates adhere to ethical rules when using artificial intelligence technologies.

Task force report authors remarked that ethical guidance in the report will likely be refined as the legal profession gains greater experience using AI technologies in practice.

The recommendations in the task force report were adopted April 6 by the New York State Bar Association’s House of Delegates.

Other AI Ethics Initiatives

State bar associations across the country have formed similar task forces to explore ethics and legal reforms that might be needed to govern artificial intelligence in the practice of law. Bar groups in Texas, New Jersey, Illinois, Kentucky, and Minnesota have all announced policy development initiatives within the past year.

And it’s widely rumored that soon the American Bar Association will weigh in with the results of the exploration of the study of ethical issues raised by artificial intelligence technologies – either through revisions to the ABA Model Code of Professional Conduct, a formal ethics opinion, or a policy report. The ABA’s Task Force on Law and Artificial Intelligence has been studying the issue since August 2023.