Generative AI is a rapidly evolving technology with the potential to significantly transform the way we work. For lawyers, this technology is particularly relevant, as it can automate many tasks that we perform on a regular basis, such as reviewing, summarizing, analyzing, and drafting documents. While many commentators have called for state bars and the American Bar Association (“ABA”) to develop a comprehensive framework addressing the use of generative AI in practice, it is important to note that the existing ABA rules, and likely your state bar's rules, already impose certain ethical duties on lawyers who use generative AI.
This article addresses some of the key obligations owed by lawyers using generative AI to their clients today.
1. Duty of Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Model Rules of Prof’L Conduct R. 1.1 (2023).
This duty requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology,” as clarified in a comment to the rules. See Model Rules of Prof’L Conduct R. 1.1 cmt. 8 (2023). Nearly every state bar in the country has adopted this comment, the so-called “Duty of Technology Competence”, since the ABA amended Comment 8 in 2012. Therefore, it is likely that you must be aware of the “risks and benefits” of generative AI as it relates to your practice to maintain the requisite level of knowledge and skill given the technology’s transformative potential. To be sure, we recommend you consult your state’s professional rules.
2. Duty of Confidentiality
A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. Model Rules of Prof’L Conduct R. 1.6(c) (2023).
It is axiomatic that lawyers owe their clients a duty of confidentiality. This duty requires lawyers to “act competently to safeguard information relating to the representation of a client against unauthorized access by third parties[.] Model Rules of Prof’L Conduct R. 1.6 cmt. 18 (2023). The duty further extends to the transmission of communications that includes information relating to representation of a client and requires that the lawyer “take reasonable precautions to prevent the information from coming into the hands of unintended recipients.” Model Rules of Prof’L Conduct R. 1.6 cmt. 19 (2023).
Lawyers should be advised that several generative AI products on the market allow third-parties to access their data. And it is the lawyer’s obligation to ensure that the product they use ensures a “reasonable expectation of privacy.” Id. Consequently, lawyers must undertake the appropriate due diligence to understand the nature of the generative AI product(s) they use, its security precautions, and limitations on third-party access.
Fortunately for CoCounsel customers, we have made the due diligence process easy by providing detailed information concerning our security practices. Our robust security practices establish a clear expectation of security so that lawyers can rest assured that their client’s confidential information stays privileged when they transmit or store sensitive information on CoCounsel.
3. Duty to Communicate
A lawyer shall promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required[.] Model Rules of Prof’L Conduct R. 1.4(a)(2) (2023). "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Model Rules of Prof’L Conduct R. 1.0(e) (2023).
The ABA has clarified that a client is informed after explaining the “material advantages and disadvantages” of the proposed action and a “discussion of the client’s or other person’s options and alternatives.” Model Rules of Prof’L Conduct R. 1.0 cmt.6 (2023). Casetext is confident that CoCounsel, and generative AI applications generally, present a material advantage to clients in its propensity to substantially decrease the time spent on matters. Consequently, it is likely clients should be informed of a lawyer’s decision to use or not use generative AI in the course of representation.
4. Duty of Supervision
With respect to a nonlawyer employed or retained by or associated with a lawyer a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer. Model Rules of Prof’L Conduct R. 5.3(a) (2023).
In 2012, the ABA amended the title of Rule 5.3, “Responsibilities Regarding Nonlawyer Assistants”, to “Responsibilities Regarding Nonlawyer Assistance” to remove any ambiguity as to whether or not this rule extends to “artificial” assistants. Consequently, lawyers must evaluate the accuracy and reliability of AI-generated work to ensure compliance.
To summarize, it's important for lawyers to be aware of the existing rules and consult their state's professional rules in order to understand the ethical obligations that come with using generative AI. As this technology becomes more widespread, it's likely that the ABA and state bars will update their rules to clarify responsibilities.