We are halfway through 2024 and one thing is clear: the “AI” marketing is booming. Nvidia, the software company dubbed the “artificial intelligence titan,” has a market cap of over $3 trillion and recently issued a 10-for-1 stock split.[1] AI apps, such as ChatGPT, are just a click away, and will soon be available via simple voice commands on your iPhone.[2]

But what does easy, seemingly unlimited access to AI mean for the practicing attorney? Legal resources are no stranger to AI, as many of the premiere research platforms boast their own AI support services (such as “Westlaw’s AI-Assisted Research,” “CoCounsel GenAI,” and “Lexis + AI”). [3] ChatGPT has even been touted for passing the bar exam![4] With all the high praise, how much should the practicing attorney rely on AI’s services?

Fortunately for the attorneys practicing in the District of Columbia, the DC Bar issued an Ethics Opinion in April to provide guidance on how attorneys should use AI when handling client matters. See Ethics Opinion 388, Attorneys’ Use of Generative Artificial Intelligence in Client Matters, DC Bar.org (link below). More specifically, the DC Bar reminds attorneys to be mindful of several Rules of Professional Conduct that may be implicated from the use of AI platforms. The implication of some Rules, such as Rule 1.1 (Competence), Rule 1.6 (Confidentiality of Information), Rule 3.3 (Candor to the Tribunal), and Rule 8.4 (Misconduct), may be obvious. For example, as practicing attorneys know, they “shall not knowingly . . . reveal a confidence or secret of the lawyer’s client” under Rule 1.6(a)(1). Therefore, as outlined in the Ethics Opinion, attorneys must be cognizant of what information he or she enters into an AI search queue for at least two reasons: (1) the information (including potential “client confidences”) provide in the search terms may be visible to the AI third-party providers; and (2) due to the generative and evolving nature of AI, its algorithm may incorporate and use the information (including potential “client confidences”) inputted in the initial search in subsequent answers as the algorithm continues to learn. In either event, the lawyer risks exposing confidential client information, notwithstanding the simple task of entering a few terms into a search bar.

In addition to the above, the concerns of AI are far-reaching, and touch areas that an attorney may not consider at first glance—like Rule 1.5 (Fees), Rule 1.16 (Client File), and Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants). For example, as it relates to attorneys’ fees, Ethics Opinion 388 reminds attorneys that under most standard attorney-client hourly billing arrangements, an attorney “can only bill for the time the lawyer spent.” Therefore, should an attorney use an AI platform to aid in researching or drafting assignment—which may significantly reduce the time involved in preparing such assignment—an attorney cannot charge the client what otherwise may be “reasonable and fair time” to complete the assignment absent the assistance of AI. To do so would be unethical.

Interestingly, in response to the prompt “Is it ethical for me to use ChatGPT for legal research,” the ChatGPT program states that one should consider the “accuracy” of legal information provided [because ChatGPT] may not always provide accurate or up-to-date information;” that “ChatGPT may not fully comprehend complex legal nuances or specific jurisdictional regulations;” and that “AI [is a] language model and doesn’t guarantee data privacy or confidentiality.”[5] All of these concerns, among many others, are covered by the DC Bar Ethics Opinion 388.

While its ease and convenience make AI a tempting resource for the time-crunched attorney, by its own admission, ChatGPT and other platforms are not perfect and not private. Attorneys must carefully consider what information is shared with any AI platform to avoid the disclosure of any confidential or privileged material. Attorneys must also be cautious of the information provided by an AI platform in response to a search query to avoid making headlines for the wrong reasons.[6]

Indeed, Ethics Opinion 388 provides a comprehensive overview of the ethical implications that an attorney must consider before typing a prompt into ChatGPT or another AI platform. For additional information and a detailed discussion on the use of AI, please refer to the Ethics Opinion 388 at the following link: https://www.dcbar.org/For-Lawyers/Legal-Ethics/Ethics-Opinions-210-Present/Ethics-Opinion-388.

[1] MoneyWatch, Nvidia 10-for-1 stock split puts share price within reach of more investors, CBS News, June 10, 2024, https://www.cbsnews.com/news/nvidia-ai-stock-split-semiconductors-market-value/

[2] Aditya Soni and Max Cherney, Apple WWDC 2024: ChatGPT comes to iPhone; ‘Apple Intelligence’ Unveiled, Reuters, June 10, 2024, https://www.reuters.com/technology/ai-is-sole-focus-apples-annual-conference-2024-06-10/

[3] © 2024 Thomson Reuters and © 2024 LexisNexis

[4] Debra Cassens Weiss, Latest Version of ChatGPT Aces Bar Exam With Score Nearing 90 th Percentile, ABA Journal, Mar. 16, 2023, https://www.abajournal.com/web/article/latest-version-of-chatgpt-aces-the-bar-exam-with-score-in-90th-percentile

[5] www.chatgpt.com

[6] Sara Marken, New York Lawyers Sanctioned For Using Fake ChatGPT Cases In Legal Brief, Reuters, June 26, 2023, https://www.reuters.com/legal/new-york-lawyers-sanctioned-using-fake-chatgpt-cases-legal-brief-2023-06-22/