Generative AI in legal practice: State Bar's ethical guidance

Generative AI is anticipated to change nearly every facet of our lives, including how lawyers practice law and how consumers receive legal services or represent themselves. The State Bar is exploring how this transformative technology will benefit lawyers in their practice and other applications in furtherance of the State Bar's public protection mission, to expand access to legal services, and to better assist the public and licensees. 

The State Bar was the first lawyer regulatory agency to issue guidance on generative AI. Over a year ago, the State Bar's Board of Trustees, recognizing the transformative potential of generative AI, directed the Committee on Professional Responsibility and Conduct (COPRAC) to explore its ethical use by lawyers. COPRAC took a comprehensive approach to this task. It formed a working group that included experts in the field; reviewed existing Rules of Professional Conduct, statutes, case law, and ethics opinions; participated in demos and lectures on generative AI products; and surveyed all licensees to solicit their views on AI and the practice of law.  

In November 2023, the Board of Trustees approved publication of COPRAC's "Practical Guidance on the Responsible Use of Generative AI in the Practice of Law." In sum, the Practical Guidance makes clear that a lawyer's ethical obligations apply to the use of generative AI in the same way as any other technology. However, there are some special considerations for lawyers when using generative AI. COPRAC's Practical Guidance provides a list of the 16 most relevant rules and several statutory obligations to consider if integrating generative AI into a legal practice.  

Despite the significant advancements in generative AI capabilities since the Practical Guidance was published, COPRAC's comprehensive assessment of professional responsibility obligations stands as a good checklist of items that any lawyer using generative AI in their legal practice should consider. As generative AI improves and its use cases evolve and expand, COPRAC is continuing to review the impact of generative AI on the professional responsibility obligations of lawyers and will update the Practical Guidance and make other recommendations to the Board for regulatory changes, as appropriate.  

Generative AI can play a crucial role in improving access to justice. By making lawyers and the courts more efficient, enabling the creation of user-friendly legal guides and self-help resources, and expanding the availability of translation services, to name a few, it could enable more individuals to be able to utilize the legal system. Legal aid providers will be able to serve more clients, and self-represented litigants will better understand their rights and navigate the legal system. The risk here is that AI tools will not be readily available to legal service organizations, thereby furthering the gap between the for-profit and nonprofit sectors, exacerbating the existing justice gap.  

The State Bar's Office of Access and Inclusion (OA&I) is the largest funder of legal services organizations in California and funds 110 qualified legal services projects and support centers. OA&I is strategically thinking about how to help legal services organizations learn about and responsibly implement generative AI to expand organizational capacity, decrease burnout, and serve more indigent Californians. OA&I is organizing and hosting product pilots and demonstrations for grantees, and in October 2023 co-organized and hosted a convening on emerging trends in access to justice, which included a live demo on multiple AI tools as well as a panel on AI in legal aid. Several panels at OA&I's upcoming October 2024 Pathways to Justice conference will cover AI and include products developed and used by grantees.  

The State Bar is also investigating how it will leverage AI in its work to automate certain routine tasks, streamline operations, and enhance services in furtherance of the State Bar's public protection mission. In June 2023, the State Bar issued Interim AI Guidelines for staff use that encourage responsible experimentation. This guidance will be discussed at the Board's upcoming meeting and updated in the coming months. The State Bar also maintains a community of practice where we share new products and use cases and provide feedback; several products are being tested as part of our community of practice effort.   

The State Bar recognizes that generative AI systems are not without risks. COPRAC's Practical Guidance, the State Bar's Interim AI Guidelines, and other work we are doing to responsibly support the exploration of AI internally and within the legal profession balance opportunity against the risks of bias, inaccuracy, incompleteness, and falsehood that could undermine the benefits that generative AI will create.  

Generative AI will provide many benefits to legal professionals, improve access to justice, and help support the State Bar's mission and employees. While these benefits may be months or years down the road, the State Bar is ensuring that we are aware of these benefits, as well as the risks. We encourage all lawyers to explore this technology in a similar risk-conscious manner. The State Bar is approaching this innovation thoughtfully - capitalizing on its benefits while remaining cautious - an approach just as applicable to an individual lawyer or law firm as to the legal regulatory agency itself.    

Leah Wilson is the State Bar's executive director, and Erika Doherty is the program director in the Office of Professional Competence at the State Bar.