by Mónika Mercz
All around the world, there have been instances of lawyers utilizing technological innovations for their benefit, such as generative artificial intelligence (GenAI). Unfortunately, several professionals ultimately failed to comprehend the true nature of these tools, resulting in occurrences, such as the now infamous case of two US attorneys submitting non-existent case law „hallucinated” by ChatGPT, and getting fined $5,000 in the process.[1] News of such cases have definitely contributed to the growing need to educate professionals about AI – a technology that will more than likely stay with us and change our lives in the coming decades.
In order to encourage lawyers to take an ethical and responsible approach to such tools, the American Bar Association’s (ABA) Standing Committee on Ethics and Professional Responsibility released Opinion 512 on Generative Artificial Intelligence Tools, which shows that it is indeed high time for professionals to fully consider their obligations related to the use of AI. The Opinion states that lawyers should either acquire a reasonable understanding of the benefits and risks of the GenAI tools that they employ in their practices or draw on the expertise of others. This is vital, not just for the purpose of providing the highest possible standard of service, but also because lawyers must recognize inherent risks associated with these tools. Professionals cannot replace or diminish their own judgment and experience to competently advise clients about their legal matters.
Confidentiality is a vital part of a lawyer’s work, which might be in jeopardy by using certain AI tools. Considering whether information relating to any representation is adequately protected, lawyers must always assess the likelihood of disclosure and unauthorized access. A key takeaway of the Opinion is that as many of today’s self-learning GenAI tools are designed so that their output could lead directly or indirectly to the disclosure of information relating to the representation of a client, said client’s informed consent is required prior to putting information relating to the representation into such a tool.[2] Part of informed consent requires that the lawyer explain the extent of the associated risks. This should include the fact that later users or beneficiaries of the GenAI tool will have access to information relating to the representation. Therefore, lawyers who wish to utilize AI tools – which might become a necessity rather than a preference in the future – should be able to understand, as well as explain how specific systems work, what risks they might pose, and which are best suited to carry out certain tasks. For the time being, lawyers will probably need to consult with IT professionals or cyber security experts, until they can attain sufficient knowledge regarding this field.
A lawyer should also communicate honestly with a client, and if asked directly how they conducted their work, must divulge the use of GenAI. Additionally, lawyers using GenAI in litigation have ethical responsibilities to the courts as well, thus, they must carefully review outputs of AI tools before using it in proceedings. Furthermore, they should explain the basis on which they will charge for fees and expenses, preferably in writing. If a lawyer uses a GenAI tool to draft a pleading and expends 15 minutes to input the relevant information into the system, the lawyer may charge for the 15 minutes as well as for the time it takes to review the resulting draft for accuracy and completeness.[3] Perhaps the most difficult issue is determining how to charge clients for providing in-house services that are not required to be included in general office overhead and for which the lawyer seeks reimbursement. On this matter, the opinion concluded that lawyers may pass on reasonable charges for “photocopying, computer research, . . . and similar items” rather than absorbing these expenses as part of the lawyers’ overhead.[4]
Lawyers also have other relevant ethical duties while utilizing modern technologies, such as candor toward the tribunal, supervisory responsibilities regarding others in the law office using the technology and charging reasonable fees.
These key points of the Opinion recall suggestions previously made on attorneys’ use of GenAI by the U.S. Patent and Trademark Office,[5] and the state bars of California,[6] Florida,[7] New Jersey,[8] New York,[9] and Pennsylvania.[10] The main difference between these documents is that the ABA’s Opinion approaches all issues from the perspective of ethics, and recognizes that the guidance would need to be updated as technology develops.[11]
The Opinion is not only a novel approach to the practical use of AI, but is a helpful reminder to attorneys to be vigilant in complying with ethical rules at all times. Its encouragement for lawyers to immerse themselves in understanding AI is a definite sign that technological expertise will be a must-have in the coming years. Thus, law courses offering knowledge on the topic can be expected to have a boom as well, in the pursuit of the highest possible standard of expertise in this line of profession.
[1] Rachel Shin: Humiliated lawyers fined $5,000 for submitting ChatGPT hallucinations in court: ‘I heard about this new site, which I falsely assumed was, like, a super search engine’, Fortune, 2023. https://fortune.com/2023/06/23/lawyers-fined-filing-chatgpt-hallucinations-in-court/
[2] Fla. State Bar Ass’n, Prof’l Ethics Comm. Op. 24-1, supra note 4, at 2; W. Va. Lawyer Disciplinary Bd. Op. 24-01 (2024), available at https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/667ac9c219bb7a1f7a4df4c2.pdf.
[3] American Bar Association: Formal Opinion 512 on Generative Artificial Intelligence Tools, 2024.
[4] American Bar Association Formal Opinion 93-379 at 7.
[5] Guidance on Use of Artificial Intelligence-Based Tools in Practice Before the United States Patent and Trademark Office, 89 Fed. Reg. 25,609, 2024. https://www.patentdocs.org/2024/04/the-usptos-guidance-on-use-of-ai-based-tools-in-practice.html.
[6] State Bar of Cal. Standing Comm. On Prof'l Resp. & Conduct, "Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law" (2023), https://www.calbar.ca.gov/Portals/0/documents/ethics/Generative-AI-Practical-Guidance.pdf.
[7] Fla. State Bar Ass'n, Prof'l Ethics Comm., Op. 24-1, 2024, https://www.floridabar.org/etopinions/opinion-24-1/.
[8] NJ S. Ct. Comm. on AI & the Cts., "Preliminary Guidelines on New Jersey Lawyers' Use of Artificial Intelligence" 2024, https://www.njcourts.gov/sites/default/files/notices/2024/01/n240125a.pdf?cb=aac0e368.
[9] NY State Bar Ass'n Task Force on Artificial Intelligence, "Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence" 2024, https://nysba.org/app/uploads/2022/03/2024-April-Report-and-Recommendations-of-the-Task-Force-on-Artificial-Intelligence.pdf
[10] Pa. State Bar Ass'n Comm. on Legal Ethics & Prof'l Resp. & Philadelphia Bar Ass'n Prof'l Guidance Comm., Joint Formal Op. 2024-200 "Ethical Issues Regarding the Use of Artificial Intelligence," May 22, 2024, https://www.pabar.org/Members/catalogs/Ethics%20Opinions/Formal/Joint%20Formal%20Opinion%202024-200.pdf
[11] ABA Formal Opinion 512 on Generative Artificial Intelligence Tools, 2024, p. 2.
