In 2024, the American Bar Association released Formal Opinion 512, which offers fresh ethical guidelines for lawyers using generative artificial intelligence tools. As AI continues to evolve, it’s increasingly important for lawyers to determine how emerging technologies fit with our ethical duties.
First, let’s talk about competence. According to Model Rule 1.1, 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, lawyers don’t need to become full-blown tech experts. However, we should “have a reasonable understanding of the capabilities and limitations of the specific GAI technology” to make informed decisions about using these tools and effectively overseeing their use.
As these technologies evolve on a rapid scale, it is our duty as proficient lawyers to stay abreast of new developments. By remaining vigilant, engaging in self-study, and consulting proficient users, we can ensure competence continues throughout representation of each client’s start-up journey and beyond.
Additionally, Generative AI lacks the ability to replace the expertise and experience lawyers must leverage during client representation. While these tools have the ability to provide ideas, summarize documents, or generate analyses, they are not without error. Any generated content must be thoroughly reviewed and vetted by the lawyer, who remains fully responsible for work performed on clients’ behalf.
Confidentiality is another concern. Before inputting any client information into an AI tool, lawyers must 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 would not align with confidentiality standards. Even worse, there’s the potential for breaches – if the AI platform isn’t secure, 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 to the attorney-client relationship. 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. 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.
Overall, while HJF Law may employ some Generative AI technologies at various stages of client relationship, we understand these technologies are not substitutes for professional startup business expertise. Our team continues to abide by the Model Rules of Professional Conduct throughout all client representation to ensure honest, transparent, and professional relationships.
If you have further questions about how HJF Law leverages AI technologies, feel free to reach out to us at (347) 808-5149 at any time.