The American Bar Association Standing Committee on Ethics and Professional Responsibility recently released its first formal opinion covering the growing use of generative artificial intelligence (GAI) in the practice of law, pointing out that model rules related to competency, informed consent, confidentiality and fees principally apply.
Formal Opinion 512 states that to ensure clients are protected, lawyers and law firms using GAI must “fully consider their applicable ethical obligations,” which includes duties to provide competent legal representation, to protect client information, to communicate with clients and to charge reasonable fees consistent with time spent using GAI.
“This opinion identifies some ethical issues involving the use of GAI tools and offers general guidance for lawyers attempting to navigate this emerging landscape,” the formal opinion said.
It added that the ABA committee and state and local bar association ethics committees will likely continue to “offer updated guidance on professional conduct issues relevant to specific GAI tools as they develop.”
The 15-page opinion specifically outlined that lawyers should be mindful of a host of model rules in the ABA Model Rules of Professional Conduct, including:
• Model Rule 1.1 (Competence). This obligates lawyers to provide competent representation to clients and requires they exercise the “legal knowledge, skill, thoroughness and preparation reasonably
necessary for the representation.” In addition, the model rule states lawyers should understand “the benefits and risks associated” with the technologies used to deliver legal services to clients.
• Model Rule 1.6 (Confidentiality of Information). Under this model rule, a lawyer using GAI must be cognizant of the duty to keep confidential all information relating to the representation of a client, regardless of its source, unless the client gives informed consent. Other model rules require lawyers to extend similar protections to former and prospective clients’ information.
• Model Rule 1.4 (Communications). This model rule addresses lawyers’ duty to communicate with their clients and builds on lawyers’ legal obligations as fiduciaries, which include “the duty of an attorney to advise the client promptly whenever he has any information to give which it is important the client should receive.” Of particular relevance to GAI, Model Rule 1.4(a)(2) states that a lawyer shall “reasonably consult” with the client about the means by which the client’s objectives are to be accomplished.
• Model Rule 1.5 (Fees). This rule requires a lawyer’s fees and expenses to be reasonable and includes criteria for evaluating whether a fee or expense is reasonable. The formal opinion notes that if a lawyer uses a GAI tool to draft a pleading and expends 15 minutes to input the relevant information into the program, the lawyer may charge for that time as well as for the time necessary to review the resulting draft for accuracy and completeness. But, in most circumstances, the lawyer cannot charge a client for learning how to work a GAI tool.
“With the ever-evolving use of technology by lawyers and courts, lawyers must be vigilant in complying with the Rules of Professional Conduct to ensure that lawyers are adhering to their ethical responsibilities and that clients are protected,” Formal Opinion 512 concluded.
The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Other recent ABA ethics opinions are available at www.americanbar.org/groups/professional_responsibility/publications/ethics_opinions/?login.
(https://www.americanbar.org/news/abanews/aba-news-archives/2024/07/aba-issues-first-ethics-guidance-ai-tools/)
Formal Opinion 512 states that to ensure clients are protected, lawyers and law firms using GAI must “fully consider their applicable ethical obligations,” which includes duties to provide competent legal representation, to protect client information, to communicate with clients and to charge reasonable fees consistent with time spent using GAI.
“This opinion identifies some ethical issues involving the use of GAI tools and offers general guidance for lawyers attempting to navigate this emerging landscape,” the formal opinion said.
It added that the ABA committee and state and local bar association ethics committees will likely continue to “offer updated guidance on professional conduct issues relevant to specific GAI tools as they develop.”
The 15-page opinion specifically outlined that lawyers should be mindful of a host of model rules in the ABA Model Rules of Professional Conduct, including:
• Model Rule 1.1 (Competence). This obligates lawyers to provide competent representation to clients and requires they exercise the “legal knowledge, skill, thoroughness and preparation reasonably
necessary for the representation.” In addition, the model rule states lawyers should understand “the benefits and risks associated” with the technologies used to deliver legal services to clients.
• Model Rule 1.6 (Confidentiality of Information). Under this model rule, a lawyer using GAI must be cognizant of the duty to keep confidential all information relating to the representation of a client, regardless of its source, unless the client gives informed consent. Other model rules require lawyers to extend similar protections to former and prospective clients’ information.
• Model Rule 1.4 (Communications). This model rule addresses lawyers’ duty to communicate with their clients and builds on lawyers’ legal obligations as fiduciaries, which include “the duty of an attorney to advise the client promptly whenever he has any information to give which it is important the client should receive.” Of particular relevance to GAI, Model Rule 1.4(a)(2) states that a lawyer shall “reasonably consult” with the client about the means by which the client’s objectives are to be accomplished.
• Model Rule 1.5 (Fees). This rule requires a lawyer’s fees and expenses to be reasonable and includes criteria for evaluating whether a fee or expense is reasonable. The formal opinion notes that if a lawyer uses a GAI tool to draft a pleading and expends 15 minutes to input the relevant information into the program, the lawyer may charge for that time as well as for the time necessary to review the resulting draft for accuracy and completeness. But, in most circumstances, the lawyer cannot charge a client for learning how to work a GAI tool.
“With the ever-evolving use of technology by lawyers and courts, lawyers must be vigilant in complying with the Rules of Professional Conduct to ensure that lawyers are adhering to their ethical responsibilities and that clients are protected,” Formal Opinion 512 concluded.
The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Other recent ABA ethics opinions are available at www.americanbar.org/groups/professional_responsibility/publications/ethics_opinions/?login.
(https://www.americanbar.org/news/abanews/aba-news-archives/2024/07/aba-issues-first-ethics-guidance-ai-tools/)
