Listen to this articleNew guidance from the American Bar Association on the ethical use of generative artificial intelligence tools shows that, as with the use of email and word processing, lawyers may soon be unable to ignore the rapidly developing technology as a necessary means of providing “competent” representation to their clients.
On July 29, the ABA Standing Committee on Ethics and Professional Responsibility issued its first formal opinion regarding lawyers’ use of AI tools. Formal Opinion 512 specifically addresses “generative” AI tools that create content for various legal tasks, including drafting contracts and briefs.
The ethics opinion predicts a time when technology will become an essential part of any legal practice.
“As GAI tools continue to develop and become more widely available, it is conceivable that lawyers will eventually need to use them to competently perform certain tasks for their clients,” the opinion states. “But even in the absence of expectations for lawyers to consistently use GAI tools, lawyers should educate themselves about GAI tools that are relevant to their work.”
Based on the premise that the IAG is here to stay, the committee attempted for the first time to identify ethical issues that lawyers need to be aware of, focusing on duties of competence, client confidentiality, informed consent, supervisory responsibility and guidelines for billing clients when using IAG tools or services.
Ameer Gado, deputy general counsel for the BCLP, stressed that the guidance, similar to Missouri’s informal ethics opinion, is not binding. He said the ABA’s guidance is welcome because this technology is rapidly emerging in the legal industry.
“The ABA opinion and the Missouri informal advisory opinion are very complementary and very consistent,” Gado said. “I think Missouri lawyers should read both opinions.”
Matt Braunel, partner at Thompson Coburn and the chairman of its AI working groupsaid the factors lawyers need to consider when using AI boil down to three things: reliability, bias and confidentiality.
The ABA’s ethics opinion was largely consistent with what lawyers expected from these three tenants, and it makes clear that lawyers should not rely solely on GAI for tasks that require the exercise of professional judgment and should seek client consent before entering client information into a GAI platform.
“The ABA opinion really emphasizes customer consent and the need to seek consent before entering customer data into a generative AI platform,” Braunel said. “The opinion also talks about oversight responsibilities, which I think we anticipated, and the reasonableness of fees, so that there is transparency and fairness in billing practices.”
These are all challenges for law firms at this point, Braunel said.
“The law is always behind technology, but the ethical rules are in the same position,” he said. “The ethical rules are not changed by technology, but the way the ethical rules are applied to technology is evolving more slowly than the technology itself.”
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Artificial intelligence is not a distant reality, it is already here.
“Firms and lawyers need to start using these tools because they are becoming a must-have and there is no stopping them,” Gado said. “They offer the opportunity to help lawyers deliver better and more efficient legal services.”
Under the Rules of Professional Conduct, lawyers are required to stay abreast of emerging technologies, and as the ABA opinion makes clear, that includes AI, said Andy Scholz, a member of Rooney McBride & Smith.
“Even if you don’t use it, you have to understand its use (…) because other people are going to use it,” he said.
While Scholz encourages all attorneys to familiarize themselves with AI, they should be aware of the policies of what they are using and should keep in mind the ABA’s guidelines regarding confidentiality.
“Be careful and, as with almost everything, working with trusted partners that you have used in the past is usually the best course of action,” he said.
In addition to confidentiality, the ABA discusses how the GAI may impact fees in Model Rule 1.5.
“This rule requires that a lawyer’s fees and expenses be reasonable and includes criteria for evaluating whether a fee or expense is reasonable. The official notice specifies that if a lawyer uses a GAI tool to draft a pleading and spends 15 minutes entering the relevant information into the program, the lawyer may charge for that time plus the time it takes to review the resulting draft for accuracy and completeness,” according to the ABA. “But in most cases, a lawyer may not charge a client for learning how to use a GAI tool.”
Scholz said using these tools saves clients thousands of dollars in billable hours by delegating tasks to GAI.
In just the last few months, GAI has evolved significantly, Braunel said.
“I’m not really talking about a five-year horizon anymore,” he said. “I think we’re in a one- to two-year horizon before these tools are really useful in the practice of law.”
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