The Florida Bar has issued a new generative AI ethics opinion which says that lawyers may ethically use generative AI technologies – with precautions.

As reported by Bob Ambrogi on his excellent LawSites blog, the non-binding Ethics Advisory Opinion 24-1 was originally drafted by the bar’s Committee on Professional Ethics at the board’s request, in order to provide lawyers guidance on the use of generative AI and approved unanimously by The Florida Bar’s Board of Governors on January 19th.

The first few sentences of the seven-page generative AI ethics opinion say this: “Lawyers may use generative artificial intelligence (“AI”) in the practice of law but must protect the confidentiality of client information, provide accurate and competent services, avoid improper billing practices, and comply with applicable restrictions on lawyer advertising. Lawyers must ensure that the confidentiality of client information is protected when using generative AI by researching the program’s policies on data retention, data sharing, and self-learning. Lawyers remain responsible for their work product and professional judgment and must develop policies and practices to verify that the use of generative AI is consistent with the lawyer’s ethical obligations.”

It also says: “While generative AI may have the potential to dramatically improve the efficiency of a lawyer’s practice, it can also pose a variety of ethical concerns. Among other pitfalls, lawyers are quickly learning that generative AI can ‘hallucinate’ or create ‘inaccurate answers that sound convincing.’” The opinion goes on to cite an example – which (of course) is last year’s infamous Mata v. Avianca case, with fake ChatGPT generated case citations.

The opinion also says: “Due to these concerns, lawyers using generative AI must take reasonable precautions to protect the confidentiality of client information, develop policies for the reasonable oversight of generative AI use, ensure fees and costs are reasonable, and comply with applicable ethics and advertising regulations.” It then goes into detail on guidance for each of those areas.

The generative AI ethics opinion concludes with this statement: “Lawyers should be cognizant that generative AI is still in its infancy and that these ethical concerns should not be treated as an exhaustive list. Rather, lawyers should continue to develop competency in their use of new technologies and the risks and benefits inherent in those technologies.” Good advice for non-lawyers too.

Florida joins California as (to the best of my knowledge) the only states to provide ethics guidelines for the use of generative AI so far. Much more to come, I’m sure.

So, what do you think? Will Florida’s generative AI ethics opinion make a difference for Florida lawyers? Please share any comments you might have or if you’d like to know more about a particular topic.

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