The American Bar Association (ABA) issued its first ethics guidance today covering the growing use of generative AI in the practice of law.
Announced here, the ABA’s Standing Committee on Ethics and Professional Responsibility released today its first ethics guidance covering the growing use of generative artificial intelligence (GAI) in the practice of law, pointing out that model rules related to competency, informed consent, confidentiality and fees principally apply.
Formal Opinion 512 states that to ensure clients are protected, lawyers and law firms using GAI must “fully consider their applicable ethical obligations,” which includes duties to provide competent legal representation, to protect client information, to communicate with clients and to charge reasonable fees consistent with time spent using GAI.
The 15-page opinion specifically outlined that lawyers should be mindful of a host of model rules in the ABA Model Rules of Professional Conduct, including:
- Model Rule 1.1 (Competence): This obligates lawyers to provide competent representation to clients and requires they exercise the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In addition, the model rule states lawyers should understand “the benefits and risks associated” with the technologies used to deliver legal services to clients.
- Model Rule 1.6 (Confidentiality of Information): Under this model rule, a lawyer using GAI must be cognizant of the duty to keep confidential all information relating to the representation of a client, regardless of its source, unless the client gives informed consent. Other model rules require lawyers to extend similar protections to former and prospective clients’ information.
- Model Rule 1.4 (Communications): This model rule addresses lawyers’ duty to communicate with their clients and builds on lawyers’ legal obligations as fiduciaries, which include “the duty of an attorney to advise the client promptly whenever he has any information to give which it is important the client should receive.” Of particular relevance to GAI, Model Rule 1.4(a)(2) states that a lawyer shall “reasonably consult” with the client about the means by which the client’s objectives are to be accomplished.
- Model Rule 1.5 (Fees): This rule requires a lawyer’s fees and expenses to be reasonable and includes criteria for evaluating whether a fee or expense is reasonable. The formal opinion notes that if a lawyer uses a GAI tool to draft a pleading and expends 15 minutes to input the relevant information into the program, the lawyer may charge for that time as well as for the time necessary to review the resulting draft for accuracy and completeness. But, in most circumstances, the lawyer cannot charge a client for learning how to work a GAI tool.
The last paragraph in Formal Opinion 512 says it all:
“Lawyers using GAI tools have a duty of competence, including maintaining relevant technological competence, which requires an understanding of the evolving nature of GAI. In using GAI tools, lawyers also have other relevant ethical duties, such as those relating to confidentiality, communication with a client, meritorious claims and contentions, candor toward the tribunal, supervisory responsibilities regarding others in the law office using the technology and those outside the law office providing GAI services, and charging reasonable fees. With the ever-evolving use of technology by lawyers and courts, lawyers must be vigilant in complying with the Rules of Professional Conduct to ensure that lawyers are adhering to their ethical responsibilities and that clients are protected.”
We’ve seen several lawyers fail to adhere to that duty of competence when using GAI already. Will this first ethics guidance from the ABA help? Or are there too many lawyers to hope that they all will adhere to their professional duties?
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So, what do you think? Will Formal Opinion 512 help curb lawyer incompetence with GAI tools? Please share any comments you might have or if you’d like to know more about a particular topic.
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