Navigating the American Bar Association’s Stance on Generative AI Tools
Generative Artificial Intelligence (AI) tools have become increasingly prevalent in the legal industry, offering lawyers the opportunity to streamline processes, enhance efficiency, and improve overall client service. However, with these technological advancements come ethical considerations that must be carefully navigated to ensure compliance with professional standards and obligations.
The American Bar Association (ABA) recently issued ABA Formal Opinion 512, titled “Generative Artificial Intelligence Tools,” to address the ethical implications of using GenAI tools in the practice of law. This opinion provides guidance on various ethical rules that lawyers must consider when utilizing these tools, including duties of competence, confidentiality, client communication, raising only meritorious claims, candor toward the tribunal, supervisory responsibilities, and setting of fees.
Competence in the Use of GenAI Tools
One of the key ethical considerations highlighted in ABA Formal Opinion 512 is the duty of competence that lawyers must uphold when using GenAI tools. The opinion emphasizes the importance of lawyers having a reasonable understanding of the capabilities and limitations of the specific technologies they are using, including remaining vigilant about the benefits and risks associated with GenAI tools.
Lawyers are reminded that they cannot solely rely on the conclusions generated by GenAI tools and must independently verify the output to ensure accuracy. Additionally, lawyers must be aware of the risk of inaccurate output or “hallucinations” produced by GenAI tools and take appropriate measures to mitigate these risks. This includes evaluating the tool being used, analyzing the output, and exercising independent professional judgment in assessing the results.
Confidentiality Considerations with GenAI Tools
Confidentiality is a cornerstone of the attorney-client relationship, and lawyers are ethically obligated to make reasonable efforts to protect client information from unauthorized disclosure or access. When using GenAI tools, lawyers must evaluate the risks of unauthorized disclosure both within and outside the firm.
Before inputting client data into a GenAI tool, lawyers must assess the tool’s privacy policy, terms of use, and contractual terms to understand how the tool will collect and utilize the data. The opinion cautions that client data uploaded to a GenAI tool within a firm may be accessed and used by other lawyers in the firm without the client’s consent, potentially violating the duty of confidentiality.
Informed Client Consent and Communication
Another crucial ethical consideration outlined in ABA Formal Opinion 512 is the requirement for lawyers to obtain informed client consent before using GenAI tools to provide legal services. Lawyers must inform clients of the risks associated with using these tools and obtain their consent prior to implementation.
Communication with clients regarding the use of GenAI tools is essential, particularly when the tool’s output may impact the fee charged to the client or influence significant decisions in the representation. Lawyers are advised to include information about the use of GenAI tools in engagement letters, but direct communication with clients may also be necessary to ensure transparency and informed consent.
Meritorious Claims and Candor Toward the Tribunal
Lawyers have an ethical duty to present meritorious claims and be candid with the tribunal before which they appear. The use of GenAI tools introduces the risk of erroneous output, requiring lawyers to independently evaluate the results provided by these tools to ensure accuracy and reliability.
Some courts may require attorneys to disclose the use of GenAI tools in court filings, highlighting the importance of researching and adhering to local court rules and practices regarding disclosure. Lawyers must uphold their ethical obligations to present accurate and truthful information to the tribunal, even when utilizing technological tools in their practice.
Supervisory Responsibilities and Governance
The ABA opinion underscores the importance of law firms and practitioners establishing clear policies and governance structures for the use of GenAI tools in the practice of law. Managers must provide guidance to lawyers, non-lawyers, and staff on the appropriate use of these tools, educate individuals within the firm on relevant policies, and supervise their implementation.
Developing and implementing a GenAI governance program is essential for law firms to evaluate the risks and benefits of using these tools, educate stakeholders, and ensure compliance with ethical obligations. By establishing robust policies and procedures for the use of GenAI tools, firms can mitigate risks and uphold professional standards in the legal profession.
Fee Considerations and Client Benefit
When billing clients for the use of GenAI tools, lawyers must adhere to ethical standards and only charge for extraordinary costs associated with the use of these tools with the client’s knowledge and consent. Any efficiencies gained through the use of GenAI tools should benefit the client through reduced fees, aligning with the ethical duty to prioritize the client’s interests.
In Conclusion
As the legal industry continues to embrace technological advancements like GenAI tools, lawyers must remain diligent in navigating the ethical considerations associated with their use. ABA Formal Opinion 512 provides valuable guidance on the ethical obligations that lawyers must uphold when utilizing these tools in their practice.
By maintaining competence, safeguarding client confidentiality, obtaining informed client consent, communicating transparently, presenting meritorious claims, and implementing robust governance structures, lawyers can leverage GenAI tools effectively while upholding professional standards. As the use of GenAI tools becomes more prevalent, it is essential for lawyers and law firms to proactively address ethical considerations and develop comprehensive strategies for the responsible use of these technologies in the practice of law.
