The Lawletter Vol. 49 No. 3
Cassidy Crockett-Verba, Senior Attorney
ARTIFICIAL INTELLIGENCE: ABA Guidance on AI Use for Lawyer
The American Bar Association (ABA) has recently released Formal Opinion 512 addressing the increased use of Artificial Intelligence (“AI”) programs, specifically Generative AI or “GAI” in the legal profession.[1] A GAI tool that generates text is a “prediction tool[] that generate[s] a statistically probable output.”[2] The Opinion focuses on five major areas—competency, confidentiality, communication, supervisory responsibilities, and fee schedules, highlighting what lawyers can do to protect themselves and their clients.
Competence
Just as with the regular practice of law, there is no need to be an expert in AI to be competent in the meaning of Model Rule 1.1. However, lawyers do need to have an understanding of the capabilities and limitations of GAI, drawing on the guidance of others as needed. GAI lacks the ability to reason and is subject to mistakes. GAI tools can assist a lawyer in laying the groundwork for a case but the attorney is always fully responsible for all work done for a client. Especially while GAI is in its infancy, lawyers who use GAI tools must review the output as AI cannot replace the judgment and experience of a trained attorney.
Confidentiality
In all cases, lawyers must keep Model Rule 1.6, regarding confidentiality, in mind. GAI “learns” by culling data from the internet or proprietary data sources and those that are considered “self-learning” in that they learn from themselves as more data is incorporated. By their nature, “self-learning” tools risk disclosing confidential information to any later users. This potentially risks disclosure to those in the firm who may be prohibited from working on the case or to other unauthorized users. To properly understand the risks and who may have access to any information inputs, the attorney should read all terms of use, privacy policies, or other terms related to the tool that they will be using and consult with IT experts when necessary.
The ABA states that attorneys using GAI must assess the likelihood of disclosure and unauthorized access, the sensitivity of information, the difficulty of implementing safeguards, and whether safeguards will negatively impact the representation of a client. The client’s informed consent must be obtained prior to any information related to representation being input into a GAI tool—which requires more than just boilerplate language.[3] The attorney must provide the best judgment about why the GAI tool is being used, and the extent of and specific information about the risks and benefits.
Communication
Lawyers should be up-front with their clients about the use of AI without being prompted but disclosure is not always necessary. When determining if disclosure is necessary, attorneys should consider the importance of the tool to the task, the significance of the task to representation, how the tool will process the information, and whether a client’s knowledge that the attorney used GAI would affect the client’s confidence in the attorney’s work. Disclosure is not required when information relating to representation will not be shared with the GAI tool, such as using a tool for idea generation. If information relevant to the representation is input into a GAI tool or if a client asks about your use of AI, or if the use of an AI tool is relevant to the basis for a fee, you must disclose. Consultation with a client is always necessary where a GAI tool’s output will influence a significant choice—such as jury selection.
Attorneys also have a duty to the court and should check local rules to be sure they do not need to specifically disclose the use of AI tools. So far, courts have seen lawyers submit GAI-assisted products with citations to nonexistent opinions, inaccurate analysis of law, and misleading arguments.[4] Lawyers are always responsible for their submissions and must ensure that all citations, arguments, and information are accurate.
Supervisory Responsibilities
Supervising attorneys have a duty to ensure that all subordinate attorneys and non-attorneys are trained on the risks and benefits of GAI tools relevant to their work. This need not be a multiday affair to train every employee on every GAI tool, rather the training could focus on the basics of GAI technology, the limitations, ethical issues, and best practices for data security. We should analogize to earlier opinions—especially those regarding cloud computing—in determining best practices while GAI is still in its infancy. Supervisors should strive to ensure that the tools are configured to preserve security and confidentiality, that the lawyer will be notified of any breaches, and that the obligation is enforceable. The tools should be investigated for reliability, security, and policies and whether the tool retains information after services are discontinued.
Fees
Finally, the ABA advised attorneys that long-standing rules still apply—you can only bill as many hours as you have actually worked. If it takes you 15 minutes to input information and prompts into a GAI tool and complete the task, but it would usually take you three hours to complete the task on your own, you can only bill 15 minutes. Lawyers cannot charge a client for the time spent learning how to use these tools if they are incorporated into the practice. However, if a client explicitly requests that a specific GAI be used and the attorney is not yet knowledgeable, the time spent learning to use that tool may be billed.
The cost of GAI tools should generally be treated as overhead costs and subsumed into the general costs, just as you would for the cost of office space or printer ink. However, if using a third-party GAI tool that bills on a per-use basis, the actual cost may be passed on to the client. As an example, if you have paid for a GAI tool embedded in your word processing software that checks grammar, spelling, and tone of your work products, that is an overhead cost. If you are using a specialized legal AI company that bills you $100 per prompt or work product output, you may pass that cost along as you would any out-of-pocket expense.
Conclusion
While GAI is in its infancy, lawyers have already started to incorporate it into their practice with varying results. The current best practices are to review any and all work products generated by GAI tools, stay up-to-date on GAI tools and their benefits and limitations, keep all client information confidential (even if it means not using GAI until you are sure information won’t be shared), communicate your use of GAI, and bill only for the actual time you have worked. The current NLRG policy is to refrain from the use of any GAI tools; however, we are always reviewing new information and will continue to evaluate the reliability and uses of GAI tools in the future.
[1] ABA Standing Comm. on Ethics & Pro. Resp., Formal Op. 512 (2024).
[2] Id. at 1.
[3] Id. at 7.
[4] See D.C. Bar Op. 388 (2024).