Ethics for New Lawyers: Responsible Use of Generative AI
Most lawyers have likely heard or read about other practitioners whose use of generative AI has resulted in unwanted outcomes. Despite the risks of AI, the technology offers tremendous promise and efficiencies when utilized appropriately.
Moreover, Rule 1.1 of the Rules of Professional Conduct – the duty of competence – compels attorneys “… to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.” [1] This arguably encompasses the responsible use of generative AI.
Attorneys who utilize generative AI should familiarize themselves with the State Bar of California’s guidance on the topic, as well as the relevant Rules of Professional Conduct and statutes. The State Bar includes a matrix with recommendations derived from specific rules.
For example, the duty of confidentiality in the context of AI implicates concerns related to the security of the information used to formulate a query. As the State Bar notes: “A lawyer must not input any confidential information of the client into any generative AI solution that lacks adequate confidentiality and security protections. A lawyer must anonymize client information and avoid entering details that can be used to identify the client.” This accords with Business and Professions Code section 6068(e) and Rules 1.6 and 1.8.2.
Likewise, a lawyer must be familiar with the Terms of Use that govern how and if information used to generate an AI query will be stored, shared with third parties, or used by the product provider.
Consistent with the duties of competence and diligence, the State Bar observes that “Overreliance on AI tools is inconsistent with the active practice of law and application of trained judgment by the lawyer. AI-generated outputs can be used as a starting point but must be carefully scrutinized.”
“A lawyer must critically review, validate, and correct both the input and the output of generative AI to ensure the content accurately reflects and supports the interests and priorities of the client in the matter at hand, including as part of advocacy for the client. The duty of competence requires more than the mere detection and elimination of false AI-generated results.”
Attorneys should not delegate their professional judgment to AI, nor may they abdicate or excuse their duties under the Rules of Professional Conduct. In particular, managerial or supervising lawyers must ensure their firms have and enforce compliant policies regarding the use of AI. All lawyers are required to ensure the conduct of those who work for a firm and utilize AI complies with the rules.
The State Bar guidelines include a recommendation that a lawyer “… should consider disclosure to their client that they intend to use generative AI in the representation, including how the technology will be used, and the benefits and risks of such use.” Counsel should also confirm the terms of the engagement and directions from the client do not restrict the use of AI in the representation.
Savings realized from a lawyer’s use of AI should benefit the client, while “[c]osts associated with generative AI may be charged to the clients in compliance with applicable law.” Counsel must ensure AI-generated results are accurate before submitting them to a court or tribunal, and must also comply with any rules, orders, or other requirements regarding the disclose of AI, consistent with Rule 3.1 (Candor to the Tribunal) and Rule 3.3 (Meritorious Claims and Contentions).
As generative AI may reflect biases that affect output, lawyers must consider these risks and take necessary precautions. “Lawyers should engage in continuous learning about AI biases and their implications in legal practice, and firms should establish policies and mechanisms to identify, report, and address potential AI biases.”
The State Bar’s guidelines highlight a number of considerations affecting the use of generative AI. It behooves California lawyers to review these guidelines to reduce their risk of inadvertent ethical violations from the use of this technology.
[1] See, Comment 1.