Initially, the Standing Committee notes that: “GAI tools that produce new text are prediction tools that generate a statistically probable output when prompted. To accomplish this, these tools analyze large amounts of digital text culled from the internet or proprietary data sources. Some GAI tools are described as self-learning, meaning they will learn from themselves as they cull more data. GAI tools may assist lawyers in tasks such as legal research, contract review, due diligence, document review, regulatory compliance, and drafting letters, contracts, briefs, and other legal documents. GAI tools — whether general purpose or designed specifically for the practice of law — raise important questions under the ABA Model Rules of Professional Conduct. What level of competency should lawyers acquire regarding a GAI tool? How can lawyers satisfy their duty of confidentiality when using a GAI tool that requires input of information relating to a representation? When must lawyers disclose their use of a GAI tool to clients? What level of review of a GAI tool’s process or output is necessary? What constitutes a reasonable fee or expense when lawyers use a GAI tool to provide legal services to clients? At the same time, as with many new technologies, GAI tools are a moving target — indeed, a rapidly moving target — in the sense that their precise features and utility to law practice are quickly changing and will continue to change in ways that may be difficult or impossible to anticipate. This Opinion identifies some ethical issues involving the use of GAI tools and offers general guidance for lawyers attempting to navigate this emerging landscape. It is anticipated that this Committee and state and local bar association ethics committees will likely offer updated guidance on professional conduct issues relevant to specific GAI tools as they develop.”

Like much of the previous guidance and commentary, the ABA focuses on: (i) Competence, (ii) Confidentiality, (iii) Communication with Clients regarding the Use of AI, (iv) Candor toward the Tribunal, (v) Supervisory Responsibilities, and (vi) the Reasonableness of Fees.

With respect to Competence: “Lawyers need not become GAI experts. Rather, lawyers must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use. This means that lawyers should either acquire a reasonable understanding of the benefits and risks of the GAI tools that they employ in their practices or draw on the expertise of others who can provide guidance about the relevant GAI tool’s capabilities and limitations. This is not a static undertaking. Given the fast-paced evolution of GAI tools, technological competence presupposes that lawyers remain vigilant about the tools’ benefits and risks. Although there is no single right way to keep up with GAI developments, lawyers should consider reading about GAI tools targeted at the legal profession, attending relevant continuing legal education programs, and, as noted above, consulting others who are proficient in GAI technology….

“Because GAI tools are subject to mistakes, lawyers’ uncritical reliance on content created by a GAI tool can result in inaccurate legal advice to clients or misleading representations to courts and third parties. Therefore, a lawyer’s reliance on, or submission of, a GAI tool’s output — without an appropriate degree of independent verification or review of its output — could violate the duty to provide competent representation as required by Model Rule 1.1. While GAI tools may be able to significantly assist lawyers in serving clients, they cannot replace the judgment and experience necessary for lawyers to competently advise clients about their legal matters or to craft the legal documents or arguments required to carry out representations.”  At the same time: “Emerging technologies may provide an output that is of distinctively higher quality than current GAI tools produce, or may enable lawyers to perform work markedly faster and more economically, eventually becoming ubiquitous in legal practice and establishing conventional expectations regarding lawyers’ duty of competence As GAI tools continue to develop and become more widely available, it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients. But even in the absence of an expectation for lawyers to use GAI tools as a matter of course, lawyers should become aware of the GAI tools relevant to their work so that they can make an informed decision, as a matter of professional judgment, whether to avail themselves of these tools or to conduct their work by other means. As previously noted regarding the possibility of outsourcing certain work, there is no unique blueprint for the provision of competent legal services. Different lawyers may perform the same tasks through different means, all with the necessary legal knowledge, skill, thoroughness and preparation. Ultimately, any informed decision about whether to employ a GAI tool must consider the client’s interests and objectives.”

With respect to Confidentiality: “Before lawyers input information relating to the representation of a client into a GAI tool, they must evaluate the risks that the information will be disclosed to or accessed by others outside the firm. Lawyers must also evaluate the risk that the information will be disclosed to or accessed by others inside the firm who will not adequately protect the information from improper disclosure or use because, for example, they are unaware of the source of the information and that it originated with a client of the firm. Because GAI tools now available differ in their ability to ensure that information relating to the representation is protected from impermissible disclosure and access, this risk analysis will be fact-driven and depend on the client, the matter, the task, and the GAI tool used to perform it. Self-learning GAI tools into which lawyers input information relating to the representation, by their very nature, raise the risk that information relating to one client’s representation may be disclosed improperly, even if the tool is used exclusively by lawyers at the same firm. This can occur when information relating to one client’s representation is input into the tool, then later revealed in response to prompts by lawyers working on other matters, who then share that output with other clients, file it with the court, or otherwise disclose it. In other words, the self-learning GAI tool may disclose information relating to the representation to persons outside the firm who are using the same GAI tool. Similarly, it may disclose information relating to the representation to persons in the firm (1) who either are prohibited from access to said information because of an ethical wall or (2) who could inadvertently use the information from one client to help another client, not understanding that the lawyer is revealing client confidences. Accordingly, because many of today’s self-learning GAI tools are designed so that their output could lead directly or indirectly to the disclosure of information relating to the representation of a client, a client’s informed consent is required prior to inputting information relating to the representation into such a GAI tool….  Because of the uncertainty surrounding GAI tools’ ability to protect such information and the uncertainty about what happens to information both at input and output, it will be difficult to evaluate the risk that information relating to the representation will either be disclosed to or accessed by others inside the firm to whom it should not be disclosed as well as others outside the firm. As a baseline, all lawyers should read and understand the Terms of Use, privacy policy, and related contractual terms and policies of any GAI tool they use to learn who has access to the information that the lawyer inputs into the tool or consult with a colleague or external expert who has read and analyzed those terms and policies. Lawyers may need to consult with IT professionals or cyber security experts to fully understand these terms and policies as well as the manner in which GAI tools utilize information.”

With respect to the duty to Communicate: “Lawyers must disclose their GAI practices if asked by a client how they conducted their work, or whether GAI technologies were employed in doing so, or if the client expressly requires disclosure under the terms of the engagement agreement or the client’s outside counsel guidelines. There are also situations where Model Rule 1.4 requires lawyers to discuss their use of GAI tools unprompted by the client. For example, clients would need to be informed in advance, and to give informed consent, if the lawyer proposes to input information relating to the representation into the GAI tool. Lawyers must also consult clients when the use of a GAI tool is relevant to the basis or reasonableness of a lawyer’s fee. Client consultation about the use of a GAI tool is also necessary when its output will influence a significant decision in the representation, such as when a lawyer relies on GAI technology to evaluate potential litigation outcomes or jury selection. A client would reasonably want to know whether, in providing advice or making important decisions about how to carry out the representation, the lawyer is exercising independent judgment or, in the alternative, is deferring to the output of a GAI tool. Or there may be situations where a client retains a lawyer based on the lawyer’s particular skill and judgment, when the use of a GAI tool, without the client’s knowledge, would violate the terms of the engagement agreement or the client’s reasonable expectations regarding how the lawyer intends to accomplish the objectives of the representation.”

With respect to the Duties to Supervise associates, paralegals, staff, and other assistance, the ABA notes and suggests that: “Earlier opinions regarding technological innovations and other innovations in legal practice are instructive when considering a lawyer’s use of a GAI tool that requires the disclosure and storage of information relating to the representation. In particular, opinions developed to address cloud computing and outsourcing of legal and nonlegal services suggest that lawyers should: (i) ensure that the GAI tool is configured to preserve the confidentiality and security of information, that the obligation is enforceable, and that the lawyer will be notified in the event of a breach or service of process regarding production of client information; (ii) investigate the GAI tool’s reliability, security measures, and policies, including limitations on the tool’s reliability; (iii) determine whether the GAI tool retains information submitted by the lawyer before and after the discontinuation of services or asserts proprietary rights to the information; and (iv) understand the risk that GAI tool servers are subject to their own failures and may be an attractive target of cyber-attacks.”

Finally, with respect to the Reasonableness of Costs and Fees, the ABA focuses on the fact that, while “GAI tools may provide lawyers with a faster and more efficient way to render legal services to their clients, lawyers who bill clients an hourly rate for time spent on a matter must bill for their actual time. The goal should be solely to compensate the lawyer fully for time reasonably expended, an approach that if followed will not take advantage of the client.” In addition: “The principles set forth in ABA Formal Opinion 93-379 also apply when a lawyer charges GAI work as an expense. Rule 1.5(a) requires that disbursements, out-of-pocket expenses, or additional charges be reasonable.” And: “To the extent a particular tool or service functions similarly to equipping and maintaining a legal practice, a lawyer should consider its cost to be overhead and not charge the client for its cost absent a contrary disclosure to the client in advance.”

 

ABA Formal Opinion No. 512  (July 29, 2024).