Seen this come up a couple of times recently, so I thought I should spread awareness about California’s new AI guidelines for lawyers.

On November 16, 2023, the State Bar of California approved guidelines to help lawyers navigate their ethical obligations when using generative AI. The five-page document, titled Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law, is available here.

The Executive Summary notes: “The following Practical Guidance is based on current professional responsibility obligations for lawyers and demonstrates how to behave consistently with such obligations. While this guidance is intended to address issues and concerns with the use of generative AI and products that use generative AI as a component of a larger product, it may apply to other technologies, including more established applications of AI. This Practical Guidance should be read as guiding principles rather than as ‘best practices.’”

California’s new AI guidelines for lawyers reference appropriate sections of the State Bar’s Rules of Professional Conduct and the state’s statutory authority and address areas including:

• Confidentiality: “A lawyer must not input any confidential information of the client into any generative AI solution that lacks adequate confidentiality and security protections. A lawyer must anonymize client information and avoid entering details that can be used to identify the client.”
• Competence and Diligence: “A lawyer must ensure competent use of the technology, including the associated benefits and risks, and apply diligence and prudence with respect to facts and law.”
• Comply with the Law: “A lawyer must comply with the law and cannot counsel a client to engage, or assist a client in conduct that the lawyer knows is a violation of any law, rule, or ruling of a tribunal when using generative AI tools.”
• Supervision & Subordinate Lawyer Responsibilities: “Managerial and supervisory lawyers should establish clear policies regarding the permissible uses of generative AI and make reasonable efforts to ensure that the firm adopts measures that give reasonable assurance that the firm’s lawyers and non lawyers’ conduct complies with their professional obligations when using generative AI… A subordinate lawyer must not use generative AI at the direction of a supervisory lawyer in a manner that violates the subordinate lawyer’s professional responsibility and obligations.”
• Communication Regarding Generative AI Use: “The lawyer should consider disclosure to their client that they intend to use generative AI in the representation, including how the technology will be used, and the benefits and risks of such use.”

These are a few examples of the guidelines, click here for the full set of California’s new AI guidelines for lawyers. Kudos to the State Bar of California for providing guidelines. Given recent examples here and here of bad use of generative AI, hopefully more states will do the same!

Hat tip to Kassi Burns for the initial heads up on the topic & to Rob Robinson with the reminder via his coverage here!

So, what do you think of California’s new AI guidelines for lawyers? Will they help minimize misuse of the technology? Please share any comments you might have or if you’d like to know more about a particular topic.

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