CURRENT MONTH (September 2024)
ABA Ethics Opinion on Generative AI
Amidst the continuous flurry of media coverage, publicity generated by tech companies, notoriety based on so-called “hallucinations,” and sundry other extravagances, practicing lawyers must surely, by now, be aware that use by the legal profession of generative artificial intelligence (“GAI”) is evolving rapidly and, as with much other technological innovation in the professions, fraught with peril. Bar regulators in several states—including (in alphabetical order) California, Florida, New Jersey, New York, and Pennsylvania—along with the patent bar have variously issued ethics opinions or guidance on the ethical use of GAI. Webinars, both public and private, proliferate, along with comprehensive courses to educate not only lawyers but the judiciary as well. As recently as August 2024, the ABA Task Force on Law and Artificial Intelligence, created in 2023, issued its first report.
Likewise, the ABA Standing Committee on Ethics & Professional Responsibility has recently (July 29, 2024) weighed in with Formal Opinion 512, Generative Artificial Intelligence Tools (“Formal Op. 512”). This opinion highlights many of the same ethical rules as the other guidance, opinions, and reports, but identifies ethical requirements in a slightly different manner. Even though the approach of Formal Op. 512 is not binding on lawyers, it does offer a useful compilation of ethics guidance keyed to the Model Rules of Professional Conduct.
Formal Op. 512 organizes the pertinent legal ethics implications of lawyers using GAI quite well. The topics addressed include:
- Competence (Model Rule 1.1)
- Communication (Model Rule 1.4)
- Fees (Model Rule 1.5)
- Confidentiality (Model Rule 1.6)
- Meritorious Claims and Contentions (Model Rule 3.1)
- Candor Toward the Tribunal (Model Rule 3.3 and Model Rule 8.4(c))
- Responsibilities of Supervisory Lawyers (Model Rule 5.1)
- Supervising Nonlawyers (Model Rule 5.3)
Not discussed by Formal Op. 512 but also worthy of consideration is Bias and Prejudice in Law Practice and in Lateral Hiring (Model Rule 8.4(g)).
For further information, including a more detailed synopsis of the topics addressed in Formal Op. 512, please see Business Law Today’s upcoming article on this topic.
