The use of artificial intelligence (AI) within the legal profession is increasingly becoming a topic of major discussion and evaluation. As AI tools become more sophisticated and are more broadly adopted within legal practices, lawyers must navigate newly emerging ethical considerations laid out in recent guidelines from the American Bar Association (ABA). This issue is meticulously addressed in the recent guidance from the ABA’s Standing Committee on Ethics and Professional Responsibility, particularly in their first formal opinion concerning the use of “generative” AI (GAI) tools released in July.
At the core of this discussion is Formal Opinion 512, which forecasts a future where technology will be an integral part of providing competent legal representation. This scenario necessitates lawyers to be well-versed not only in the capabilities of AI tools but also in their limitations. The opinion suggests that as generative AI tools continue to evolve and gain accessibility, they will become essential in performing certain legal tasks efficiently and competently for clients.
Ethical Considerations in AI Adoption
Competence and Confidentiality
The rapid proliferation of powerful AI systems brings about various challenges and considerations for attorneys. These include protecting client confidentiality, ensuring fair and reasonable fee structures, and maintaining compliance with existing ethical standards. William L. Orlewicz, a principal with Relic Law, highlights how the ABA opinion outlines the multiple ways lawyers have already incorporated GAI to enhance legal practice. Opinion 512 is particularly sweeping in the range of ethics topics it addresses, although it is somewhat constrained by the limited timeframe available to assess the actual use and impact of GAI within the legal profession.
The opinion also provides a helpful framework for lawyers to assess potential ethical risks associated with various uses of GAI. Given the significant influence GAI may have in legal representation, Opinion 512 draws attention to several key duties of lawyers: Competence, Confidentiality, Communication, Supervisory Responsibilities, and Fees. These duties underscore the importance of incorporating and managing AI responsibly within legal practices. The ABA opinion mirrors recent AI FAQs published by the State Bar of Michigan, reflecting concerns on ethics rules regarding AI, including lawyers’ diligence and honesty toward the judiciary.
Client Relations and Informed Consent
Client relations play a crucial role in how AI is utilized within law practices. Taylor A. Gast, from Foster Swift Collins & Smith, illustrates how his firm’s approach to AI involves several steps: understanding the nuances of Generative AI, aligning with ethical guidelines and client communication, establishing a firm-wide AI policy, and continuous monitoring and communication with clients. Gast emphasizes that any organization, especially law firms, must develop comprehensive policies surrounding the use of Generative AI. These policies should cover issues such as approved third-party AI platforms and restrictions on permissible input data types to maintain client confidentiality and trust.
To mitigate risks around client confidentiality, legal teams using AI must maintain strong client relationships. Formal Opinion 512 mandates that attorneys obtain explicit and informed consent from clients before inputting any non-public client information into self-learning AI tools. Informed consent involves clearly explaining the AI tool’s benefits, assessing potential risks, and outlining possible misuse of client data. Even when tools do not require explicit consent, attorneys should evaluate whether consultation with the client is still necessary to maintain transparency and trust.
Practical Implementation of AI in Legal Practices
Educating Clients and Establishing Policies
Orlewicz recommends educating clients about AI use during initial consultations, explaining the technology, its application, risks, and benefits. Some firms might find it helpful to provide a prewritten FAQ or Fact Sheet, or direct inquisitive clients to an AI chatbot. Client perspectives on AI use can vary; some may appreciate the potential for lower fees, while others might be skeptical about the lawyer’s reliance on AI, fearing it could reduce the quality of human judgment in their cases. Firms must clearly articulate the role of AI within their practice and have policies for clients who do not consent to the use of AI in their representation.
Gast adds that lawyers need to communicate clearly about the integration of AI in their work, addressing the challenges and complexities of AI responsibly, especially regarding the processing of sensitive information. The use of AI tools also brings new considerations in pricing legal services, as clients may expect greater efficiency and lower costs simultaneously, even as firms invest significantly in these technologies.
Balancing Efficiency and Human Judgment
The integration of artificial intelligence in the legal field is increasingly a significant topic of discussion and analysis. As AI tools become more advanced and widespread in law practices, lawyers must navigate new ethical considerations outlined by the American Bar Association (ABA). This issue is comprehensively addressed in recent guidelines by the ABA’s Standing Committee on Ethics and Professional Responsibility, particularly in their initial formal opinion on the use of “generative” AI (GAI) tools, released in July.
Central to this discussion is Formal Opinion 512, which envisions a future where technology is integral to competent legal representation. This scenario requires lawyers to be knowledgeable about AI tools’ capabilities and limitations. As generative AI tools evolve and become more accessible, they will be vital in performing certain legal tasks effectively and competently for clients. This formal opinion emphasizes the necessity for lawyers to stay informed and up-to-date with AI advancements to maintain ethical standards and deliver high-quality legal services.
