In the not-so-distant past, before emails, BlackBerries, Wi-Fi, and social media, application of the Rules of Professional Conduct to the conduct of lawyers, in many respects, was straightforward.
However, as technology has evolved and its use has become commonplace in the legal profession, ethics committees around the country have struggled to apply those rules to situations involving technological advancements.
Generative artificial intelligence (GAI) is just the most recent in a long line of technologies that creates questions of responsible use. As GAI use among lawyers increases and as GAI becomes increasingly embedded into legal technology tools, attorneys should be prepared to understand the ethical implications when using GAI.
This article covers:
- the basics of GAI and how it is being used in the legal industry,
- ethical considerations under the Model Rules of Professional Conduct,
- obligations under the Federal Rules of Civil Procedure and local court rules, and
- a discussion about the future of GAI and the practice of law.
What Is GAI, and How Is It Being Used in the Legal Industry?
GAI is a class of artificial intelligence techniques and models designed to generate new content or data similar to but distinct from existing data. These models learn patterns and structures from a given dataset and use that knowledge to create a new product that resembles the training data used. (Definition provided by ChatGPT 2024)
In the past several months, GAI has become increasingly popular. It has been used in the legal industry to automate tasks that would ordinarily take legal professionals a substantial amount of time.
GAI can assist attorneys with researching matters, drafting documents, writing emails, understanding new legal concepts, analyzing documents, and conducting due diligence. Using GAI like this can help legal professionals reduce costs and save time, but it also poses some unique challenges in practice.
There are two primary categories of concern when using GAI in law. The first is the output risk. That is the risk that the information generated by the GAI system may be incorrect or unreliable.
The second is the input risk. Depending on where this data is input, it could result in a potential breach of confidentiality. If proper precautions to secure personally identifiable information are not taken, GAI use could cause serious privilege and data security concerns.
Ethical Considerations with Respect to the Use of GAI
With the rapid development of GAI products geared toward use in the legal profession, we have seen ethics committees struggle to catch up and issue guidance for lawyers on its use.
However, in late 2023 and early 2024, ethics committees in Florida and California issued ethics guidance for lawyers about GAI use in the practice of law. As the authorities in these two jurisdictions make clear, there are many rules that lawyers using these products need to be aware of and comply with to meet their ethical obligations under the Rules of Professional Conduct.
1. Duty of Competence
Under Rule 1.1 of the ABA Model Rules of Professional Conduct, lawyers are required to provide competent representation to their clients.
That rule states, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Although Model Rule 1.1 has arguably always required a lawyer to keep current on changes in the law, including the impact that the use of technology may have on their representation of their clients, in 2012, the ABA adopted a change to the comments to Rule 1.1 that expressly states as much.
Comment [8] to Model Rule 1.1 states, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology….”
To date, at least 40 states have adopted this amendment to the comments to the version of Rule 1.1 in place in their jurisdictions.
California’s guidance confirms Rule 1.1 requires that before a lawyer uses GAI in connection with the practice of law, “a lawyer should understand to a reasonable degree how the technology works, its limitations, and the applicable terms of use and other policies governing the use and exploitation of client data by the product.”
This means the lawyer should have a general understanding of how the GAI creates its output and the potential risks of using the technology before using it in connection with the provision of legal services. For example, a lawyer should understand that GAI work products could include false or inaccurate information (e.g., hallucinations) or biased information.
2. Duty of Diligence
Coupled with a lawyer’s duty of competence is a lawyer’s duty of diligence. Under Model Rule 1.3, “[a] lawyer shall act with reasonable diligence and promptness in representing a client.”
When it comes to a lawyer’s GAI use in providing legal services, the duty of diligence requires that a lawyer carefully review and scrutinize any AI-generated output to make sure it is legally and factually sound.
As the California Bar makes clear, “[o]verreliance on AI tools is inconsistent with the active practice of law and application of trained judgment by the lawyer.” Failure to ensure that any work product generated by AI is accurate can lead to harsh judicial and disciplinary sanctions. (See Mata v. Avianca, Inc. (S.D.N.Y. June 22, 2023); People v. Crabill (Colo. O.P.D.J. Nov. 22, 2023); Park v. Kim (2d Cir. Jan. 30, 2024); In re: Thomas Grant Neusom, (M.D. Fla. Mar. 8, 2024)).
3. Duty of Confidentiality
The duty of confidentiality is the bedrock of the attorney-client relationship.
Under Model Rule 1.6, lawyers are strictly prohibited from revealing a client’s confidential information unless the client consents to the disclosure, the disclosure is impliedly authorized to carry out the client’s representation, or one of the very narrow exceptions to the duty of confidentiality applies.
Additionally, under Model Rule 1.6(c), lawyers are required to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
Many of the GAI programs are supplied by third-party vendors who are not lawyers or otherwise associated with a law firm. As a result, lawyers must take steps, as required by Model Rule 1.6, to ensure that their clients’ information is appropriately safeguarded.
To ensure the confidentiality of the information, a lawyer contemplating GAI use should consider discussing confidentiality concerns with the third-party provider.
The lawyer should also inquire about, among other things,
- what type of information is going to be provided,
- how that information will be stored, how that information will be used in the future,
- whether the information will be used to train the product,
- what security measures are in place with respect to the storage of the information, and
- who is going to have access to the information.
A lawyer should only proceed with disclosing client confidential information to any GAI product in connection with their representation of a client after concluding that the client confidential information they provide will be reasonably safeguarded.
Model Rule 1.6 also works directly with Model Rule 1.1 when it comes to a lawyer’s AI use. If a lawyer fails to possess or attain the requisite level of competence when it comes to understanding the technology they are using, it could lead to an inadvertent disclosure of client confidential information, which could violate Model Rule 1.6.
4. Duty to Supervise
Under Model Rules 5.1 and 5.3, lawyers have an express obligation to supervise the work of both the lawyers and nonlawyers they engage to assist them in providing legal services to ensure their conduct complies with the Rules of Professional Conduct.
Although these rules are typically applied to humans, a 2012 amendment to Model Rule 5.3 makes clear these rules likely extend to GAI as well. In 2012, the ABA approved the Ethics 20/20 Commission’s recommendation to change the title of Rule 5.3 from “Responsibilities Regarding Nonlawyer Assistants” to “Responsibilities Regarding Nonlawyer Assistance.”
This change shows the rule is intended to have reach beyond human assistants to other nonlawyers, human or not, involved in a client’s representation.
Under Rules 5.1 and 5.3, lawyers who engage GAI to assist in the provision of legal services need to take steps to ensure they are adequately supervising the GAI’s work.
How best to do this will depend on the type of AI being used. But compliance with these rules will likely require the lawyer using GAI to take steps to verify that the GAI’s work product is complete and correct and does not otherwise expose the client to risk by, for example, inadvertently disclosing client confidential information.
Additionally, as the Florida Bar has noted, a lawyer may not delegate any tasks that would constitute the practice of law to GAI, such as “the negotiation of claims or any other function that requires a lawyer’s personal judgment and participation.”
Obligations Under the Federal Rules of Civil Procedure and Local Court Rules with Respect to GAI Use
1. Federal Rules of Civil Procedure
Under Federal Rule of Civil Procedure (FRCP) Rule 11, by signing, filing, submitting, or advocating for a pleading, written motion, or other paper, an attorney certifies to the court that the claims, defenses, and other legal contentions therein are either warranted by existing law or by nonfrivolous argument for new law or a change in the law.
Where such contentions are not warranted, the court may impose appropriate sanctions on the offending attorney, law firm, or party.
If an attorney submits or argues something in federal court using case law hallucinated by ChatGPT or other GAI (or perhaps even real cases cited incorrectly by GAI), there is already precedent for the imposition of sanctions or disciplinary referrals for FRCP Rule 11 violation. (See e.g., Park v. Kim (2d Cir. Jan. 30, 2024))
In several respects, FRCP Rule 11 covers many of the same duties as the Rules of Professional Conduct, including the duties of competence, diligence, and supervision.
2. Local and Department Rules
Beyond the FRCP, over the past year, state and federal judges have begun instituting standing orders requiring attorney attestations regarding their GAI use in preparing filings.
Some judges are requiring attorneys to submit certifications to confirm either no GAI was used to help research or prepare a filing or, if it was, to disclose the GAI product used and confirm a human reviewed the GAI-produced material for accuracy prior to submission.
Thus, it is essential to check local and departmental rules at the outset of a case and before submitting court filings to ensure compliance with the rules surrounding GAI use.
The Future of GAI in the Practice of Law
The integration of GAI is poised to revolutionize legal practice, streamlining research, document review, strategy development, and compliance. It will enable attorneys to rapidly uncover key evidence and facilitate the construction of enhanced arguments by analyzing extensive legal data.
Predictive analytics will be pivotal in anticipating case outcomes, informing strategic decisions related to case management and settlements, and strengthening claims for negotiations and litigation.
Notwithstanding the potential transformation, the legal sector exhibits a degree of resistance to integrating GAI. Lawyers may be skeptical about or reluctant to adopt GAI due to its cost and perceived complexity. There may also be a tendency to cling to conventional methodologies.
This reticence is further exacerbated by a broader cooling of enthusiasm for GAI and its potential implications compared to its peak shortly after the release of ChatGPT.
Nonetheless, the trajectory of technological adoption in other fields indicates GAI’s role in law will, in due course, grow exponentially. The reduction in technology costs and advancements in GAI capabilities are likely to mitigate the current resistance.
As GAI benefits become more pronounced, client expectations will rise, driving the legal industry toward adaptation.
GAI is set to enhance the adversarial system by shifting the lawyer’s focus from mundane tasks to strategy and advocacy, elevating the intensity and quality of legal proceedings. We also predict GAI will slowly make its way into the U.S. judicial system, playing a more active role in case determinations.
Still, the requirement for legal practitioners to be licensed, including passing an ethics exam, ensures that GAI will not completely supplant attorneys (at least for now). This prerequisite maintains the indispensable human element in the practice of law, necessary for ethical considerations, judgment, and interpretation — tasks beyond the scope of GAI.
The integration of human expertise with GAI is anticipated to shape a new legal landscape where the role of the lawyer is augmented, not replaced, fostering a synergistic relationship that enhances the practice of law while simultaneously underscoring the growing need for adaptability and technical acumen among legal professionals.
Conclusion
The introduction of GAI in the legal industry necessitates a nuanced understanding and application of ethical standards and professional conduct. As legal practitioners increasingly adopt GAI, they must grapple with the complexities of maintaining competence, diligence, confidentiality, and supervision, as highlighted by recent ethics guidance from jurisdictions like Florida and California.
This evolution demands a recalibration of traditional legal practices to ensure they align with the technological imperatives of modern legal service delivery while still adhering to the legal profession’s foundational principles.
The integration of GAI promises to transform the legal landscape by enhancing research capabilities, predictive analytics, and the overall efficiency of legal proceedings.
Despite initial resistance within the profession due to concerns over cost, complexity, and a departure from conventional methods, the trajectory of technology adoption suggests an inevitable shift toward a more technologically adept legal sector.
This shift will not replace the intrinsic human elements of legal practice — judgment, ethics, and interpretation — but will augment the role of legal practitioners, fostering a synergistic relationship between lawyers and technology that enhances the practice of law in an increasingly digital age.
Authors: John M. Nolan, General Counsel, Eric J. Felsberg, Principal, A. Scott Ruygrok, Principal, and Remick M. Stahl, Assistant General Counsel (Jackson Lewis P.C.)
