Attorney Ethics Counsel

May 15, 2024

Every Lawyer Should Access Legal Ethics Guidance for Generative AI

The legal world has been awash in headlines about the use and implications of generative AI, or artificial intelligence. Recent incidents involving the use of generative AI in court submissions—including citing incorrect or non-existent case authority to a court—have demonstrated that lawyers need to exert special care in using generative AI and that lawyers need to exercise ordinary care in using generative AI.

The Rules of Professional Responsibility already outline, in great detail, the ordinary care that lawyers must use in legal work. Applying the existing rules to generative AI would be sufficient to avoid becoming a headline. On the other hand, special care is also required because generative AI tends to produce seemingly authoritative results, even if they are entirely made up. That feature of generative AI, and the fact that the technology is so new and changing so quickly, with few broadly applicable standards or safeguards, all mean that lawyers need to be especially cautious about using it.

State Bar authorities have taken note, issuing ethics guidance on generative AI at an accelerated pace, in part to emphasize that lawyers need to think carefully about how they use this new technology.

In late November last year, The State Bar of California’s Committee on Professional Responsibility and Conduct (“COPRAC”) issued its “Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law” to assist lawyers in navigating their ethical obligations when using generative artificial intelligence. Among other things, this practical guidance identifies how the current Rules apply to the use of generative AI, and highlights several areas where such use could be a potential problem in ways that are not entirely intuitive or expected, even for lawyers familiar with their duties under the Rules.

Other states have followed. In January, for example, the Florida Bar issued its Opinion 24-1, which is apparently the first formal opinion regarding the application of its rules to generative AI. Specifically, the opinion outlines how “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.” Last month, the New York State Bar Association released its Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence.

These resources are expressly not the final word on ethics issues related to generative AI. The technology is changing so quickly that any static analysis has to be viewed in context. But COPRAC’s Practical Guidance, while not a formal opinion, is a robust starting point for lawyers interfacing with generative AI.

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