The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has issued a formal opinion addressing the ethical considerations surrounding lawyers’ use of generative artificial intelligence (GAI) tools in legal practice. Formal Opinion 512, released on July 29, 2024, provides crucial guidance for attorneys navigating this rapidly evolving technological landscape.
At the heart of the opinion is the fundamental principle of competence. The ABA emphasizes that while lawyers need not become GAI experts, they must develop a reasonable understanding of the capabilities and limitations of the specific GAI tools they employ. This understanding extends beyond mere familiarity; lawyers are expected to maintain technological competence as these tools continue to evolve. The committee suggests that attorneys can achieve this through self-study, consultation with knowledgeable colleagues or seeking guidance from external experts.
Confidentiality, a cornerstone of the attorney-client relationship, receives significant attention in the opinion. Lawyers are advised to carefully evaluate the risks associated with inputting client information into GAI systems. Particularly noteworthy is the guidance on self-learning GAI tools, which may pose unique risks to client confidentiality. The opinion states that lawyers must obtain informed client consent before using such systems with confidential information, underscoring the importance of transparency and client communication in the AI era.
Speaking of communication, the ABA outlines scenarios where lawyers may need to disclose their use of GAI tools to clients. This is particularly relevant when GAI significantly influences decision-making in a case or when its use might affect the client’s evaluation of the lawyer’s work. The opinion encourages proactive communication about GAI use, suggesting that engagement agreements could be an appropriate place to address this topic.
The committee also addresses the ethical implications of using GAI in court submissions. Lawyers are reminded of their duties regarding meritorious claims and candor toward the tribunal. Given the potential for GAI to produce inaccurate or fabricated information, the opinion stresses the importance of thoroughly reviewing GAI outputs before submitting them to courts. This review is crucial to avoid inadvertently making false statements or misrepresentations.
The opinion outlines specific responsibilities for law firm managers and supervisory attorneys. These include establishing clear policies on GAI use within the firm and providing adequate training to ensure all staff members understand the ethical considerations and best practices associated with GAI tools.
Finally, the opinion delves into the complex issue of fees related to GAI use. Lawyers are advised to ensure that any charges associated with GAI are reasonable and transparent. The committee distinguishes between GAI tools that might be considered part of a firm’s overhead and those that could be billed as expenses. Importantly, lawyers are reminded that they can only bill for actual time spent, even if GAI tools significantly increase efficiency.
Throughout the opinion, the ABA emphasizes a crucial point: while GAI tools can enhance efficiency and potentially improve the quality of legal services, they cannot replace a lawyer’s professional judgment and ethical responsibilities. Attorneys remain ultimately responsible for the work product delivered to clients and must stay vigilant about evolving ethical considerations as GAI technology continues to advance.
As the legal profession increasingly embraces AI technologies, Formal Opinion 512 shoulld serve as a vital resource, helping lawyers navigate the ethical challenges and opportunities presented by generative AI. It underscores the importance of balancing technological innovation with the core values and responsibilities of the legal profession.