The ABA Has an Opinion on the Use of AI by Lawyers. You Should Know About It.
Imagined by AI
Since generative AI became prominent in the news, I’ve written a few articles about it. You’ll find them right here under blogs
These articles have addressed lawyers’ use of AI in court and in arbitration. Famously, some lawyers have filed briefs with cases that were mere “hallucinations” by an AI system, landing them in hot water and embarassment.
I noted that the Silicon Valley Arbitration and Mediation Center was ahead of the curve by issuing draft guidelines, taking comments, and then issuing guidelines on use of AI I also noted that some courts had issued guidelines of their own and imposed disclosure requirements for use of AI.
The American Bar Association has now issued a formal opinion on the ethical aspects of use of generative AI. I read it, asked an AI program to summarize it, edited it, added a few comments, and now can provide you this article.
No robots were harmed – or even inconvenienced – in generating this article:
Navigating Ethical Waters: ABA Formal Opinion 512 on Generative AI
The American Bar Association (ABA) has issued Formal Opinion 512, addressing the ethical implications of using Generative Artificial Intelligence (GAI) tools in legal practice. This opinion is important to lawyers who leverage AI to enhance their services, ensuring they adhere to ethical standards while embracing technological advancements.
The Rise of AI in Legal Practice
Lawyers and their staff use AI technologies for many legal tasks, from electronic discovery in litigation to contract analytics in mergers and acquisitions. These tools help lawyers manage large amounts of data, and improve the efficiency of legal research.
But the focus of Opinion 512 is on GAI, a subset of AI that generates new content, such as text, images, and code, based on user prompts. This is known as Generative AI – “GAI” for short.
Understanding Generative AI
GAI tools analyze large datasets to produce statistically probable outputs. These tools can help lawyers in drafting documents, conducting due diligence, and ensuring regulatory compliance. But, despite their benefits, GAI tools pose significant ethical challenges under the ABA Model Rules of Professional Conduct, summarized below:
Key Ethical Considerations
1. Competence (Model Rule 1.1): Lawyers must maintain a high level of competence when using GAI tools. This includes understanding the benefits and risks associated with these technologies. Lawyers need not be GAI experts. Still, they must understand the basics of the GAI tools they use, including their limitations. They must recognize, for example, that GAI is only as good as the information from which it has been trained. If trained on the wrong information, the output can be inaccurate or biased. Lawyers need to review the information provided by GAI and must always use their profession judgment on behalf of clients.
It may be that, one day, lawyers’ duty of competence will require use of GAI, just as lawyers are required to master other technological aspects of practice like use of e-mail, computerized legal research, and the like. But for now, lawyers who decide to use GAI must have a reasonable understanding of its operation.
2. Confidentiality (Model Rule 1.6): Lawyers must ensure that GAI tools do not compromise confidentiality. This often will require informed consent from clients. Even use within law firms can raise the possibility that a client’s information is compromised if GAI uses it on behalf of another client. Steps must be taken to address the issues GAI raises for confidentiality. This includes understanding how the GAI tool uses and data and how it does or does not protect confidentiality of data. This may require consultation with IT professionals.
3. Communication (Model Rule 1.4): Effective communication with clients about the use of GAI tools is essential. Lawyers must reasonably consult with clients about how these tools will be used to achieve their objectives and obtain conformed consent. This is not a matter of including “boilerplate” warnings or sign offs. The client must have the lawyer's best judgment why the GAI tool will be used, specific information about the risks of use - including possible ways client information could be exposed, and a clear explanation of the benefits of use of the GAI tool to the client’s representation.
4. Supervision (Model Rule 5.1 and 5.3): Lawyers must supervise their employees and agents who use GAI tools, ensuring compliance with ethical standards. Just as lawyers must supervise other lawyers doing research, drafting documents and the like, they must “supervise” GAI to make sure it is accurate. And they must provide appropriate training in use of AI.
5. Meritorious Claims (Model Rule 3.1): Lawyers should only advance claims and contentions that are meritorious, even when using GAI tools to generate legal arguments.
6. Candor Toward the Tribunal (Model Rule 3.3): Ensuring honesty and transparency in court proceedings is critical. Lawyers must verify the accuracy of GAI-generated content before presenting it in court. Some courts have rules requiring lawyers to notify the court they have used GAI to generate briefs and the like. Lawyers must comply with those rules, of course. But the ABA did not identify a general duty to inform the court GAI was used to assist in drafting documents.
7. Reasonable Fees (Model Rule 1.5): Fees charged for services involving GAI tools must be reasonable. Lawyers should consider the time spent using these tools and the value they add to the legal services provided. Lawyers are not allowed to charge for the time it takes them to learn how to use GAI tools.
Conclusion
As GAI tools continue to evolve, lawyers must stay informed about their ethical obligations. The ABA’s Formal Opinion 512 provides a framework for navigating tuse of GAI in legal practice, emphasizing the importance of competence, confidentiality, communication, supervision, and reasonable fees. By following these guidelines, lawyers can harness the power of GAI while upholding the highest ethical standards.
Now that you know about it, you will want to make a detailed review of the Opinion which you can find all this link: