More Ethics Guidance Arrives Amid Rapid Releases Of Legal AI
Taking steps to maintain your ethical duty of technology competence is more important than ever.
No matter where you look, you’re most likely hearing about generative AI (GAI). Whether it’s CLEs from your local bar association, legal association conference sessions, your local newspaper, or your online legal news source, GAI has been a hot topic for more than a year now. In the coming months, you’re going to hear even more about it, especially as legal technology companies ramp up their GAI releases.
In past columns, I’ve written about significant legal GAI product announcements, but, in 2024, you’ll see a rapid, exponential uptick in the number of new GAI tools for legal professionals. For instance, there’s a major legal technology conference occurring right now in New York City: Legalweek 2024. Thus far, the vast majority of new releases being announced incorporate GAI in one form or another.
That’s why it’s more important than ever to take steps to maintain your ethical duty of technology competence. This ethical obligation requires you to stay abreast of changes in technology so that you can make informed, educated decisions about whether and how to incorporate technology into your law practice.
Up until recently, there was minimal on-point guidance available for lawyers interested in exploring how to use GAI in their practices.
Fortunately, as I explained in my previous column, the State Bar of California’s Committee on Professional Responsibility and Conduct handed down a thorough roadmap for ethical generative AI adoption in law firms in November 2023. This guidance addressed many different ethical issues including technology competence, confidentiality, and the requirement of candor, both with legal clients and courts.
I promised there was more to come, and as expected, two different jurisdictions released AI ethics guidance over the past week.
The first was Florida, which issued Ethics Opinion 24-1 on January 19. In that opinion, the Board Review Committee on Professional Ethics addressed a broad range of AI ethics issues, from confidentiality and pricing to supervision and lawyer advertising. The findings and the opinion merits careful review, especially if you’re a Florida practitioner.
Many of the findings were predictable, including the warning that GAI tools often provide inaccurate output and that lawyers have a supervisory duty to carefully review all responses for errors.
Similarly, the committee warned that GAI providers must be carefully vetted and that lawyers must ensure that they fully understand how confidential data will be handled and used. The committee analogized the vetting process to that used when choosing a cloud computing provider and cautioned that to ensure that the confidentiality of client information is protected when using generative AI, it’s essential to fully understand “the program’s policies on data retention, data sharing, and self-learning.”
Interestingly, the committee recommended that lawyers should obtain client consent before submitting confidential client data to a GAI system. I don’t expect this requirement will withstand the test of time since, historically, when this requirement has been required for other types of emerging technologies like email and cloud computing, it eventually disappeared as the technologies became widely used. The same will happen with GAI, but this technology will become commonplace much more quickly than its predecessors.
New Jersey also entered the fray on January 24 by handing down preliminary AI guidelines for lawyers. Notably, the New Jersey Supreme Court Committee on Artificial Intelligence and the Courts concluded that “[t]he ongoing integration of AI into other technologies suggests that its use soon will be unavoidable, including for lawyers.” Like the other opinions, there was an emphasis on the required oversight due to the infancy of these tools, along with an emphasis on taking steps to maintain the confidentiality of client data.
In contrast to the Florida committee, the New Jersey committee determined that the rules “do not impose an affirmative obligation on lawyers to tell clients every time that they use AI,” but there are some situations that might require it.
Next, the committee noted that its guidelines were preliminary and did not address all issues triggered by GAI usage, including advertising and legal billing, and that additional guidance may be issued as new concerns arise.
Lastly, the committee closed with a warning that all legal practitioners should heed: “In this complex and evolving landscape, lawyers must decide whether and to what extent AI can be used so as to maintain compliance with ethical standards without falling behind their colleagues.”
Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.
