Antitrust Law Daily Wrap Up, AI NEWS: ABA issues opinion on GenAI in law practice, (Jul 31, 2024)
Formal Opinion 512 goes beyond what most attorneys already know about using GenAI in court filings to also address law practice issues such as communications, confidentiality, supervision, and fees.
The American Bar Association's (ABA) Standing Committee on Ethics and Professional Responsibility has issued guidance on the use by attorneys of generative artificial intelligence (GenAI). The guidance covers mostly familiar ground, including the use of GenAI to draft court filings, but the opinion also discusses in detail many issues at the core of law practice and law firm management, such as confidentiality, communications, supervision, and fees. The ABA’s guidance, set forth in Formal Opinion 512, should be broadly helpful and yet many open questions about GenAI and law practice persist, including whether and how states will incorporate the ABA’s guidance into their attorney ethics rules, whether federal courts will adopt rules specifically tailored for GenAI, and how federal legislation on deep fakes, if it were to be enacted, might spur changes to federal and state rules of evidence. All of these issues arise in an environment in which attorneys and judges often disagree on whether special ethics rules for GenAI are needed when existing rules may be sufficient to address new challenges.
“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,” said an ABA press release, citing the concluding remarks in the new formal opinion.
Overall, Formal Opinion 512 urges attorneys to gain a “reasonable understanding” of GenAI’s benefits and risks, which understanding they must continually update as the technology evolves. The opinion also suggests that attorneys must stay in the loop to review any GenAI outputs used in representing clients. Because the ABA’s Model Rules of Professional Conduct are merely guidance for states, attorneys must check their local attorney ethics rules to confirm if they are subject to a similar technology competence requirement.
Formal Opinion 512 also goes beyond what most attorneys already know about technology competence and using GenAI in court filings to address a number of law practice issues, such as communications, confidentiality, supervision, and fees, that perhaps some attorneys had not thought were impacted by their use of GenAI. Fees, for example, must be reasonable and, for attorneys who charge hourly rates, must reflect actual work done, even if the attorney is highly efficient in doing the work. It remains to be seen how much efficiency gains will be achieved by attorneys using GenAI, but according to the guidance an attorney could potentially charge a client for the time to draft a prompt that inputs information into a GenAI tool and for the time spent reviewing the output from the tool.
With respect to confidentiality, the ABA said attorneys must take “reasonable efforts” to prevent unauthorized or inadvertent disclosure of information related to a representation. Confidentiality is required under the guidance and existing ABA rules absent a client’s informed consent or an applicable exception to the general rule of maintaining confidentiality. Duties regarding confidentiality also apply to prospective and former clients. A critical problem with any GenAI tool is its ability to learn or train on information fed into it. This means that attorneys need to be careful about drafting prompts that incorporate business proprietary information.
Effective attorney-client communication also may require disclosures about an attorney’s use of GenAI in a representation, according to the ABA. Here, Formal Opinion 512 divides disclosures into those that are mandatory and those that are voluntary. Mandatory disclosure about the use of GenAI would arise when a client directly asks if GenAI will be used or the client requires such disclosure in the engagement letter. Other mandatory disclosure situations would include the input of information about the representation into a GenAI tool, the impact of using GenAI on fees, and the use of GenAI to conduct litigation (e.g., prediction of outcomes)—the guidance said the key issue regarding litigation is the degree to which the attorney acts independently or defers to GenAI. Still other situations might call for voluntary disclosure by an attorney when no other rule mandates disclosure; the ABA said the engagement letter is the “logical place” for voluntary disclosures about GenAI.
Formal Opinion 512 also addresses the attorney’s role in supervising others within the law firm environment. For example, law firms should have policies and relevant training on the ethical use of GenAI. “Training could include the basics of GAI [GenAI] technology, the capabilities and limitations of the tools, ethical issues in use of GAI and best practices for secure data handling, privacy, and confidentiality,” said the ABA’s guidance. Supervising attorneys also have responsibilities for the oversight of non-attorney assistants and for the use of third-party services.
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