Many lawyers today are wrestling with the question of whether they should inform clients that artificial intelligence technologies are being used on their case matters. Ethical advice from state bar regulators has been slowly accumulating for the past several years, but there is as of yet no definitive answer.
Legally significant artificial intelligence tools, along with other computer-driven technologies, pervade the legal community. They assist in legal research, suggest fruitful questioning during depositions, mine deposition transcripts for significant testimony, flag conflicts of interest, track important deadlines and trial dates, predict litigation outcomes, and – very recently – take a lead role in electronic discovery chores as well as drafting contracts and legal pleadings.
The ethical issues surrounding artificial intelligence tools arise most critically when these technologies might affect case outcomes or expenses of the representation. In these circumstances, the use of artificial intelligence tools likely carries with it an ethical obligation to disclose their use to the client and obtain informed consent.
How much of this computer assistance must be disclosed to clients? Must the relatively novel use of ChatGPT to draft a brief be disclosed to the client, while the use of human law students to do the same work need not? Perhaps.
What about office word processing and billing software, or software used to help identify and hire new law firm associates? Likely not.
The ethical issues surrounding artificial intelligence tools arise most critically when these technologies might affect case outcomes or expenses of the representation. In these circumstances, the use of artificial intelligence tools likely carries with it an ethical obligation to disclose their use to the client and obtain informed consent.
Clients Must Be Reasonably Consulted
Discussion of this issue begins with an examination of the lawyer’s ethical duty to communicate with clients on significant case matters.
Rule 1.4(2) (Communications) of the ABA Model Rules of Professional Conduct provides that a lawyer must “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”
Commentary to Rule 1.4 the rule explains that, in general, lawyers are not expected to describe “in detail” trial strategy to the client. What is expected is that the client will be given enough information to make informed decisions about carrying out the objectives of the representation. According to the commentary: “The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests and the client’s overall requirements as to the character of representation.”
The ABA recently suggested that prior ethics opinions discussing the lawyer’s obligation to inform clients of the use of temporary lawyers might provide useful guidance when deciding whether the use of artificial intelligence for a client matter should be disclosed to the client. For example, Virginia bar officials said they saw “little purpose” in informing the client about legal support services that are “truly tangential, clerical, or administrative in nature.”
California state bar regulators have concluded that lawyers must disclose the use of a temporary lawyer to a client if the temporary lawyer’s work constitutes a “significant development” in the case. And in New York, state bar officials have opined that the ethical duty to disclose the use of contract lawyers to clients depends on a weighing of several factors: whether client confidences will be disclosed to the lawyer, the degree of involvement of the lawyer in the matter, and the significance of the work done by the lawyer. Florida bar officials, on the other hand, believe that the duty to disclose the use of temporary lawyers depends on how important their use is in the eyes of the client.
The answer is … it depends.
According to ABA Formal Opinion 512 (Generative Artificial Intelligence Tools) (published July 24, 2024), the ethical duty to disclose the use of artificial intelligence technologies in a client matter will depend on the facts of each case. After noting that disclosure would be unnecessary in some cases, the ABA went on to list several situations where disclosure would be absolutely required:
- In response to an inquiry from the client about the use of artificial intelligence technologies in the representation
- When the retainer agreement requires disclosure of artificial intelligence technologies
- When the lawyer proposes to input client confidential information into an artificial intelligence tool (can be handled with informed client consent)
- When the use of artificial intelligence is relevant to the basis or reasonableness of the lawyer’s fee
- When the output of an artificial intelligence tool will influence a significant decision in the representation
In all other circumstances, the ABA wrote, lawyers should weigh the specific facts surrounding the representation and the artificial intelligence tool in question in order to arrive at an ethically reasonable decision. Factors cited by the ABA include the client’s needs and expectations, the scope of the representation, the sensitivity of the information involved, the artificial intelligence tool’s importance to a particular task, the significance of that task to the overall representation, and how the tool will process the client’s confidential information.
One final consideration: “the extent to which knowledge of the lawyer’s use of the [artificial intelligence] tool would affect the client’s evaluation of or confidence in the lawyer’s work.” Clients hire lawyers, not computers.
With this guidance in mind, a careful attorney might decide to inform all clients in writing, perhaps in the retainer agreement, that artificial intelligence tools may be used during the course of the representation. And to have a thorough discussion with each client on the benefits, and risks, of using these new technologies.
Views at the State Level
State bar groups across the country are divided over what the ethical duty to communicate with clients means in the context of artificial intelligence. Below, in a nutshell, are their views on the duty to communicate the use of artificial intelligence tools to clients.
California: Disclosure of generative artificial intelligence tools is not strictly required, but lawyers should weigh ethical duty to communicate use “based on the facts and circumstances, including the novelty of the technology, risks associated with generative AI use, scope of the representation, and sophistication of the client.” State Bar of California, Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law (Nov. 16, 2023)
District of Columbia: Lawyers have ethical duty to communicate use of artificial intelligence tools if the lawyer intends to bill the client for out-of-pocket costs. District of Columbia Bar, Ethics Opinion 388 (Attorneys’ Use of Generative Artificial Intelligence in Client Matters) (April 11, 2024).
Florida: Lawyer’s obligation to see informed client consent to use artificial intelligence tools depends on risk involved and client expectations. Lawyer is obligated to seek client consent if client confidential information will be disclosed as input to artificial intelligence tool. Florida Bar Ethics Opinion 24-1 (Jan. 19, 2024)
Kentucky: “Routine use” of artificial intelligence tools need not be communicated to client, unless client is being charged for AI-related costs or court rule requires disclosure to client. Client informed consent is required if confidential information will be provided as input to artificial intelligence tool. Kentucky Bar Association, Ethics Opinion KBA E-457 (March 15, 2024).
New Jersey: AI-related changes to billing practices must be communicated to clients. New Jersey State Bar Association, Task Force on Artificial Intelligence (AI) and the Law: Report, Requests, Recommendations, and Findings (May 2024).
New York: Lawyers should consider including in retainer agreement a statement that artificial intelligence tools may be utilized in your representation of the client and seek the client’s acknowledgement. Lawyers may not rely solely on content generated from artificial intelligence tools. Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence (April 6, 2024).
Pennsylvania: Lawyers must inform clients of use of artificial intelligence tools, providing explanations of how tools are used and their potential impact on case objectives. Lawyers must disclose AI-related expenses to clients. Pennsylvania Bar Association and Philadelphia Bar Association, Joint Formal Opinion 2024-200 (Ethical Issues Regarding the Use of Artificial Intelligence) (June 2024).
Texas: No definitive recommendations, but notes guidance from Florida and California bar regulators that lawyers communicate adequately with clients about use of artificial intelligence tools. State Bar of Texas, Taskforce for Responsible AI in the Law Interim Report (2024).
Utah: Seek and obtain client consent prior to using generative artificial intelligence tools such as ChatGPT. Treat AI-generated outputs like a draft from a law clerk. Utah State Bar Association, Using ChatGPT in Our Practices: Ethical Considerations (2023).
West Virginia: Lawyers should consult with clients prior to using artificial intelligence tools during representation, and should obtain client consent for use in writing. West Virginia Bar Association, Legal Ethics Opinion 24-01 (2024).
