As the “AI Revolution” continues to gain momentum, questions concerning professional ethics have arisen across almost all professions. For legal services providers in particular, this disruptive technology poses both risks and advantages; however, there has been little in the way of formal guidance on using AI in the profession.

Last month, I wrote about some of the questions raised regarding an attorney’s use of (and, potentially, failure to use) services like ChatGPT and other generative AI (GAI) tools and technologies. Without any formalized guidelines, I noted that it was imperative that we as professionals identify potential issues that could be seized upon by our clients, Disciplinary Counsel, and/or the Courts as an arguable violation of ethical and professional standards and rules.

On July 29, 2024, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued its preliminary set of recommendations; indeed, Formal Opinion 512 serves as the first national guidance for the use of GAI in the legal profession.¹

Specifically, the Standing Committee notes in its opinion that: “GAI tools that produce new text are prediction tools that generate a statistically probable output when prompted. To accomplish this, these tools analyze large amounts of digital text culled from the internet or proprietary data sources. Some GAI tools are described as self-learning, meaning they will learn from themselves as they cull more data.”

In essence, these tools are not search engines and should not be treated as such, a sentiment that many scholars made a concerted effort to emphasize during the early days of GAI. Further, as it pertains to tasks such as “legal research, contract review, due diligence, document review, regulatory compliance, and drafting letters, contracts, briefs, and other legal documents,” the ABA acknowledges that GAI tools—whether designed for legal practice or not—have the potential to be an asset in the profession.

The ABA acknowledges that because GAI tools are a “rapidly moving target,” updated guidance is likely. In Opinion 512, though, the Standing Committee offers “general guidance for lawyers attempting to navigate this emerging landscape” with a focus on (i) Competence, (ii) Confidentiality, (iii) Communication with Clients regarding the Use of AI, (iv) Candor toward the Tribunal, (v) Supervisory Responsibilities, and (vi) the Reasonableness of Fees.

Competence

With respect to Competence, the ABA asserts that “lawyers need not become GAI experts. Rather, lawyers must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use.” Whether through personal research or the expertise and guidance of others, the rapid development of these tools dictates that “this is not a static undertaking.”

The ABA also warns against an uncritical reliance on GAI-created content. These tools “cannot replace the judgment and experience” required by lawyers, putting them at risk of providing inaccurate legal advice or misleading representations. Without the appropriate degree of independent verification or review of a GAI tool’s output, lawyers can “violate the duty to provide competent representation as required by Model Rule 1.1,” should their overdependence “result in inaccurate legal advice to clients or misleading representations to courts and third parties.”

As technologies continue to develop, at the same time “it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients.” While there is currently no expectation from the ABA for lawyers to use GAI tools, “lawyers should become aware of the GAI tools relevant to their work so that they can make an informed decision, as a matter of professional judgment, whether to avail themselves of these tools or to conduct their work by other means.”

Confidentiality

With respect to Confidentiality, lawyers have a duty to “evaluate the risks that the information will be disclosed to or accessed by others outside the firm,” as well as “the risk that the information will be disclosed to or accessed by others inside the firm who will not adequately protect the information from improper disclosure or use.” The Committee notes that because the GAI tools available differ in their ability to ensure information is protected, this “risk analysis will be fact-driven and depend on the client, the matter, the task, and the GAI tool used to perform it.”

The Committee’s largest concern with GAI and confidentiality is the design of a self-learning tool which, “by their very nature, raise the risk that information relating to one client’s representation may be disclosed improperly, even if the tool is used exclusively by lawyers at the same firm.” Because of this uncertainty, before a lawyer inputs any information relating to representation, the “client’s informed consent is required.”

To prevent any potential violations of the ABA’s confidentiality rules, all lawyers, as a baseline, “should read and understand the Terms of Use, privacy policy, and related contractual terms and policies of any GAI tool they use” to know who has access to input information. Consulting with a colleague or external expert who has reviewed and analyzed those terms and policies is also an option. In addition, it is recommended that lawyers consult with IT professionals or cybersecurity specialists to deepen their understanding of GAI tools and their use of information.

Communication

With respect to a lawyer’s duty to Communicate, the Opinion plainly states that “if asked by a client how they conducted their work, or whether GAI technologies were employed in doing so, or if the client expressly requires disclosure under the terms of the engagement agreement or the client’s outside counsel guidelines,” then lawyers must disclose their GAI practices.

Based on Model Rule 1.4, there are some situations where lawyers are required to discuss their GAI use without being prompted by a client. For example, as previously mentioned, informed consent is required before a lawyer inputs information related to representation. Additionally, lawyers must disclose any use of GAI tools when it “is relevant to the basis or reasonableness of a lawyer’s fee.”

Clients would reasonably want to know if their lawyer is exercising independent judgment or defaulting to the GAI’s output when providing advice or making important decisions. If a GAI tool’s output “will influence a significant decision in the representation, such as when a lawyer relies on GAI technology to evaluate potential litigation outcomes or jury selection,” then client consultation is also necessary. The Opinion also points to potential situations where the use of a GAI tool, without the client’s knowledge, may violate the terms of an engagement; for example, “if a client retains a lawyer based on the lawyer’s particular skill and judgment.”

Supervisory Responsibilities

With respect to the Duties to Supervise associates, paralegals, staff, and other assistance, the ABA notes and suggests that “when considering a lawyer’s use of a GAI tool that requires the disclosure and storage of information relating to the representation” previous opinions that “address cloud computing and outsourcing” are instructive.

Firstly, lawyers should guarantee that the GAI tool is designed to preserve confidentiality of information, that the “obligation is enforceable,” and that—in the event of a breach—the lawyer will be notified. The GAI tool’s “reliability, security measures, and policies” should be investigated by the lawyer, including any limitations surrounding the tool’s reliability. Lawyers should know if information is retained by the GAI tool “before and after the discontinuation of the service” as well as if the tool “asserts proprietary rights to the information.” Finally, the lawyer should understand that the GAI tool servers are “subject to their own failures and may be an attractive target of cyber-attacks.”

Reasonableness of Costs and Fees

Finally, with respect to the Reasonableness of Costs and Fees, the ABA focuses on the fact that, while lawyers may be presented with GAI tools that make rendering legal services faster and more efficient, “lawyers who bill clients an hourly rate for time spent on a matter must bill for their actual time.” The ABA also points to the principles outlined in Formal Opinion 93-379 when lawyers charge GAI work as an expense: “The goal should be solely to compensate the lawyer fully for time reasonably expended, an approach that if followed will not take advantage of the client.”

Model Rule 1.5(a) requires that disbursements, out-of-pocket expenses, or additional charges be reasonable.

Finally, unless there is proper advance disclosure, a lawyer should not charge a client for its cost and should instead consider the cost of GAI tools to be overhead.

Conclusion

The Standing Committee on Ethics and Professional Responsibility has provided important guidance on some of the key questions regarding an attorney’s use or non-use of generative AI. However, the ABA also acknowledges that GAI technology is ever evolving and that, as its use in the legal field continues to grow, “lawyers must be vigilant in complying with the Rules of Professional Conduct to ensure that lawyers are adhering to their ethical responsibilities.” As AI develops, legal services providers should expect more guidance to come.

¹ ABA Formal Opinion No. 512 (July 29, 2024).