The American Bar Association recently released Formal Opinion 512, offering fresh ethical guidelines for lawyers using generative artificial intelligence tools. As AI continues to evolve, it’s becoming increasingly important for lawyers to figure out how this new tech fits with our ethical duties, considering lawyers aren’t that tech savvy.
First, let’s talk about competence. Lawyers must provide competent representation, which now includes understanding the benefits and risks of the tech tools we rely on. When it comes to generative AI, we don’t need to become full-blown tech experts (thank god), but we should know enough to make informed decisions about using these tools and effectively oversee their use when we do.
Confidentiality is another big concern. Before inputting any client information into an AI tool, we have to carefully consider the risks. Generative AI tools, especially those that “learn” from every piece of data they process, could accidentally retain and recycle sensitive information from one client’s case to another, which is a big no-no. Even worse, there’s the potential for breaches – if the AI platform isn’t secure, which is a big possibility considering many of them are still in their more primitive stages, there’s a chance that hackers, third-party vendors, or even other users could access confidential client data.
So, where does that leave us? According to the ABA, like any relationship, clear and open communication is critical. Lawyers should be upfront with their clients about using AI tools, especially if it could significantly impact their case or involve sensitive data. In some situations, explicit informed consent may be necessary, particularly when confidential information is at stake. When it comes to litigation, all content submitted to the court must be meticulously reviewed to ensure it is accurate and doesn’t misrepresent any facts or laws. And on the topic of fees, transparency is key: We should be upfront with clients about our billing practices related to AI to avoid any appearance of overcharging or hidden costs.