A new ethics opinion from The Florida Bar says that lawyers may ethically use generative AI technologies, provided they are careful to adhere to their ethical obligations.
The opinion also urges lawyers to continue to develop competency in the use of new technologies such as AI and the risks and benefits inherent in those technologies.
Approved unanimously by The Florida Bar’s Board of Governors Jan. 19, the non-binding Ethics Advisory Opinion 24-1 was originally drafted by the bar’s Committee on Professional Ethics at the board’s request, in order to provide lawyers guidance on the use of generative AI.
The committee circulated a draft of the opinion in November, to which it received about a dozen comments, according to The Florida Bar News.
Acknowledging that generative AI has the potential to “dramatically improve the efficiency of a lawyer’s practice,” the opinion nonetheless cautions that it also poses a variety of ethical concerns.
“Lawyers using generative AI must take reasonable precautions to protect the confidentiality of client information, develop policies for the reasonable oversight of generative AI use, ensure fees and costs are reasonable, and comply with applicable ethics and advertising regulations,” the opinion says.
In discussing these various ethical issues, the opinion begins with client confidentiality. When using generative AI, a lawyer has a duty to protect the confidentiality of client information, the opinion says. However, a lawyer need not obtain the client’s consent to use AI, unless its use would involve the disclosure of confidential information.
To satisfy their ethical obligations, lawyers using AI must sufficiently understand the technology, the opinion says. Noting that numerous ethics opinions already exist that spell out a lawyer’s duties of confidentiality and competence in areas such as cloud computing, electronic storage disposal, remote paralegal services, and metadata, the opinion says they are “equally applicable to a lawyer’s use of third-party generative AI when dealing with confidential information.”
The opinion also says that confidentiality concerns may be mitigated by use of inhouse generative AI.
Oversight of Generative AI
Just as a lawyer has a duty to supervise non-lawyer assistants, a lawyer has a duty to make reasonable efforts to ensure that the use of AI is compatible with the lawyer’s own professional obligations, the opinion says.
“Lawyers who rely on generative AI for research, drafting, communication, and client intake risk many of the same perils as those who have relied on inexperienced or overconfident nonlawyer assistants.”
Further, lawyers have a duty to review the work product of generative AI just as they would the work of nonlawyer assistants such as paralegals. “Lawyers are ultimately responsible for the work product that they create regardless of whether that work product was originally drafted or researched by a nonlawyer or generative AI.”
The opinion warns against using generative AI in ways that could constitute the practice of law. In particular, it urges caution in the use of website chatbots, which, the opinion says, present the risk of creating a lawyer-client relationship without the lawyer’s knowledge.
“For these reasons, a lawyer should be wary of utilizing an overly welcoming generative AI chatbot that may provide legal advice, fail to immediately identify itself as a chatbot, or fail to include clear and reasonably understandable disclaimers limiting the lawyer’s obligations.”
Legal Fees and Costs
Ethics rules prohibit lawyers from fees or costs that are illegal or clearly excessive. Given that AI may make a lawyer more efficient, the opinion says, “this increase in efficiency must not result in falsely inflated claims of time.”
In what is perhaps a nod to those who say that generative AI could be the death knell for the billable hour, the opinion suggests lawyers using generative AI consider alternative forms of billing.
“Lawyers may want to consider adopting contingent fee arrangements or flat billing rates for specific services so that the benefits of increased efficiency accrue to the lawyer and client alike.”
If a lawyer intends to charge a client for the use of an AI service, the lawyer should inform the client of this, preferably in writing, and ensure that all charges are reasonable and not duplicative, the opinion says.
The opinion cautions lawyers to be careful when using generative AI for advertising and intake. Here again, it singles out the use of AI chatbots, warning lawyers that they will be responsible if a chatbot provides misleading information to prospective clients or communicates in a manner that is inappropriately intrusive or coercive.
“To avoid confusion or deception, a lawyer must inform prospective clients that they are communicating with an AI program and not with a lawyer or law firm employee,” the opinion says.
Lawyers may advertise their use of AI, but cannot claim their AI is superior to the AI used by other lawyers or firms “unless the lawyer’s claims are objectively verifiable.”
What is meant by “objectively verifiable”? That, says the opinion, “is a factual question that must be made on a case-by-case basis.”
The opinion concludes with the note that generative AI is in its infancy and that the ethical issues covered in the opinion should not be considered an exhaustive list.
“Rather, lawyers should continue to develop competency in their use of new technologies and the risks and benefits inherent in those technologies,” the opinion says.
The Bottom Line
With generative AI often perceived as a radically different and potentially more powerful form of technology, there has been much written about its ethical implications for legal professionals.
My opinion has been that no new rules are needed to address generative AI — that the existing rules and the existing body of ethics opinions pertaining to the use of technology apply with equal force and clarity to generative AI.
This is particularly true of lawyers’ duties to be technologically competent, to protect privileged client data, and to supervise the use of technology by those with whom they work.
Insofar as this opinion relies heavily on prior ethics opinions around subjects such as cloud computing and the duty of technology competence, it underscores that notion that, although generative AI is a newly emerging technology, the same old rules apply.