Lawyers must guard against ethical lapses if they use generative artificial intelligence in their work, the American Bar Association said on Monday.
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In its first formal ethics opinion 512, opens new tab on generative AI, an ABA committee said lawyers using the technology must “fully consider” their ethical obligations to protect clients, including duties related to lawyer competence, confidentiality of client data, communication and fees.
Acknowledging that the rapid development of gen AI makes it a fast-moving target, the committee said, “It is anticipated that this Committee and state and local bar association ethics committees will likely offer updated guidance on professional conduct issues relevant to specific GAI tools as they develop.”
The opinion offers no earth-shattering insights. Rather, it focuses on much the same ethics issues that have been discussed in state ethics opinions issued so far on gen AI and the same issues that come up in almost every ethics opinion on legal technology of any kind: competence, confidentiality, communication with clients, supervisory responsibilities, and fees.
One issue unique to generative AI that the opinion addresses is that of meritorious claims and candor toward a tribunal.
Recognizing that issues have arisen with lawyers’ use of AI involving citations to nonexistent opinions, inaccurate analysis of legal authorities, and use of misleading arguments, the ABA says that lawyers have a duty — both under their duty of competence and of candor to courts — to review the accuracy of all outputs from generative AI products.
[pdf-embedder url=”https://thenigerialawyer.com/wp-content/uploads/2024/07/Formal-Opinion-512.pdf” title=”Formal Opinion 512″]
“In judicial proceedings, duties to the tribunal likewise require lawyers, before submitting materials to a court, to review these outputs, including analysis and citations to authority, and to correct errors, including misstatements of law and fact, a failure to include controlling legal authority, and misleading arguments,” the opinion says.
The opinion begins with, and devotes its largest section to, a discussion of a lawyer’s duty of competence in using generative AI under Model Rule 1.1 — both legal competence and technological competence. That duty, the ABA says, does not require that lawyers become experts in AI, but they develop a reasonable understanding.
“To competently use a GAI tool in a client representation, lawyers need not become GAI experts,” the opinion says. “Rather, lawyers must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use.”
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