Wendy L. Patrick

Wendy is a California lawyer, past chair and advisor of the California State Bar Ethics Committee (Committee on Professional Responsibility and Conduct), and past chair of the San Diego County Bar Association Legal Ethics Committee. Any opinions expressed here are her own, and do not reflect that of her employer. This article does not constitute legal advice.

Crushing caseloads, client demands, and the need for speed have made artificial intelligence an invaluable tool for lawyers and legal professionals. We can safely say that AI is here to stay, as we acknowledge myriad ways we are already using it, and have been for years. As we collectively learn more about how to safely use AI technology, ethics opinions are weighing in on the boundaries of artificial assistance.

The American Bar Association in Formal Opinion 512 (2024) discussed the parameters of integrating generative AI tools into legal practice. They emphasized the requirement of fully considering ethical duties to clients and employees, including the duty of competence, communication, and the all-important duty of confidentiality, among others.

Lawyers' use of AI has grabbed headlines in recent years, showcasing success as well as shame. Robot briefs and other AI-authored "creations" have created embarrassing error-filled documents that led to high-profile legal sanctions, illustrating the pitfalls of delegating legal work to artificial assistants. Yet with appropriate supervision and oversight, AI plays an important role for modern lawyers.

ABA Formal Opinion 512: Generative artificial intelligence tools

ABA Formal Op. 512 discusses the use of generative artificial intelligence tools in legal practice within the boundaries of applicable ethical rules. It begins by recognizing that many lawyers already utilize AI "to improve the efficiency and quality" of legal services to clients. It recognizes the well-established example of electronic discovery, which allows lawyers to use AI to inspect voluminous documents in order to categorize information as legally responsive or non-responsive, and to segregate privileged information. It notes several other important ways lawyers use AI, including the practical use of AI in litigation to help predict judicial behavior based on a judge's history of decisions or rulings.

Legal research is an area where lawyers have long used AI-based tools, and specific AI-related queries may enhance these search results. Formal Op. 512 focuses on a subset of AI technology- generative AI (GAI), which has the potential to create everything from text and images to audio and video, even software code, per appropriate prompts. The opinion describes GAI tools as "prediction tools that generate a statistically probable output when prompted" by analyzing large amounts of digital text gathered from the Internet or even from sources of proprietary data. The Opinion notes that some GAI tools are "self-learning" as they gather more data. Accordingly, GAI tools can provide legal assistance in areas such as research, document review, and drafting letters, contracts, briefs, and other documents.

Applicable Rules of Professional Conduct

Formal Opinion 512 addresses the most important question we have as legal professionals using AI: ethical rules potentially implicated by its use. One of the most obvious rules in play is the duty of competence. ABA Rule 1.1, Competence, requires a lawyer to "provide competent representation to a client." Such representation requires "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Emerging technological advances are specifically addressed in Comment [8] of the rule, which specifies in pertinent part that in order to maintain the required amount of knowledge and skill, a lawyer should keep up with changes in laws and legal practice, "including the benefits and risks associated with relevant technology." How much is enough? The Opinion suggests becoming familiar with GAI tools that are specifically targeted at the legal profession, which can be attained through attending legal education programs as well as consulting with others who are proficient in using relevant GAI technology. To avoid embarrassing errors that could result from overreliance on GAI, the Opinion emphasizes the importance of appropriate oversight and independent verification or review of AI work product, which will also ensure compliance with rule 1.1.

Confidentiality

ABA Model Rule 1.6 (a) states in pertinent part that a lawyer "shall not reveal information relating to the representation of a client unless the client gives informed consent." Formal Opinion 512 emphasizes the importance of evaluating the risk that using GAI tools may result in client information being disclosed to or accessed by individuals outside the law firm, or even within the firm who should not see it.

The potential for unauthorized exposure or disclosure also impacts the type of consent a client should be requested to give. Opinion 512 reinforces the truth that informed consent entitles a client to a lawyer's best judgment about why a specific GAI tool is being used in the representation, as well as specific information about the level of risk, including details about the type of client information that will be disclosed. Such consent should also include a discussion of the ways others might use the information against the client's interests, as well as an understandable explanation of how GAI tools will benefit the representation.

Communication

ABA Rule 1.4 (a)  requires a lawyer to "promptly inform the client of any decision or circumstance with respect to which the client's informed consent" is required, "reasonably consult with the client about the means by which the client's objectives are to be accomplished," and to keep clients reasonably informed about case status, among other things. Opinion 512 notes that although rule 1.6 does not require disclosure and informed consent, lawyers must determine whether other Model Rules, including rule 1.4, require disclosing the lawyer's utilization of a GAI tool in the client representation.

Other ethical rules

Opinion 512 covers a variety of other ethical rules that could potentially come into play when using AI, including the duty to bring meritorious claims (Rule 3.1), the duty of candor (Rule 3.3), supervision (Rule 5.1 and 5.3), as well as client fees (Rule 1.5). The Opinion recognizes, as many practitioners already have, that GAI tools can allow lawyers to work faster, creating a more efficient way to render legal services to clients, although lawyers who bill an hourly rate must bill for their actual time spent on the matter.

The bottom line is that artificial intelligence enables busy practitioners to work both faster and smarter, provided they operate with an understanding of the potential benefits and burdens of using new technologies. Although AI can never replace human judgment or lived experience, when used properly it can enhance an advocate's ability to handle a case effectively and ethically.