New York Bar Association New AI Guidance: Part 2

Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

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New York Bar Association New AI Guidance: Part 2

In last week’s column, I shared news of the recent artificial intelligence (AI) guidance handed down by the New York State Bar Association’s AI Task Force in the “Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence.”

In this lengthy report, the Task Force addressed a wide range of issues, including 1) an in-depth examination of the evolution of AI and GenAI, 2) its risks and benefits, 3) how it impacts society and the practice of law, and 4) ethics guidelines and recommendations for lawyers who use these tools.

Last week we discussed several areas of focus from the report, including data preservation issues and the impact of deepfake evidence on the judicial process. Today we’ll dive into the legal ethics guidance provided in the report.

First, the Task Force considered Rule 1.2 and the scope of representation. It explained that if you will be using generative AI in the course of handling a matter, you should consider including a statement to that effect in your engagement letter, which your client should acknowledge receiving. 

The following sample language was suggested: “Use of Generative AI: While representing you, we may use generative AI tools and technology to assist in legal research, document drafting, and other legal tasks. This technology enables us to provide more efficient and cost-effective legal services. However, it is important to note that while generative AI can enhance our work, it is not a substitute for the expertise and judgment of our attorneys. We will exercise professional judgment in using AI-generated content and ensure its accuracy and appropriateness in your specific case.”

Diligence pursuant to Rule 1.3 was also addressed. The Task Force emphasized that as part of due diligence, lawyers must determine the benefits and drawbacks of using AI tools for a specific case. 

Next, the Task Force turned to Rule 1.4 and cautioned that lawyers should not rely on AI tools to replace client communication. Certainly, lawyers can use the tools to “assist with generating documents or responses” but the duty to ensure an open and clear line of communication lies with attorneys who must “maintain direct and effective communication with…client(s) and not rely solely on content” created by AI.

The impact of AI usage on legal fees under Rule 1.5 was also considered. The Task Force emphasized that AI-driven efficiency gains - or unrealized gains resulting from the failure to use this technology - should be taken into account when determining what constitutes a “reasonable” fee. Additionally, engagement letters should include mention of any surcharges billed to clients: “If you will add a ‘surcharge’ (i.e., an amount above actual cost) when using specific Tools, then you should clearly state such charges in your engagement letter, provided that the total charge remains reasonable.”

The Task Force also advised that the confidentiality requirements of Rule 1.6 apply when using AI software. Lawyers should obtain client consent to use these tools and have a continuing duty to ensure that providers will protect confidential data and keep each client’s data segregated and protected.

Next, the Task Force considered Rules 5.4 and 5.5, which require lawyers to exercise personal independence and prohibit them from relying solely on AI-produced output without reviewing and carefully considering the results. AI tools “should augment but not replace your legal work.”

The Task Force opined that because AI may increase efficiency significantly, it also has the potential to increase the “amount and scope of the pro bono legal services” that lawyers can provide. As such, under “the application of Rule 6.1, you are encouraged to use the Tools to enhance your pro bono work.”

Another ethics issue that the Task Force discussed was advertising and the requirements of Rule 7.1, which mandate lawyers to carefully oversee all AI-created content publicly posted on their behalf. Attorneys must ensure that it is “truthful and non-deceptive.”

Finally, the Task Force cautioned that Rule 7.3 requires avoiding AI software usage when generating “phone calls, chat board posts or other forms of solicitation” whether made by the attorney or someone else on their behalf.

This guidance should serve as encouragement to use these tools, not discouragement. The Task Force has provided comprehensive guidance to assist in integrating these tools into law practices. Rather than replacing the nuanced judgment of attorneys, AI improves their ability to represent clients effectively by increasing the efficiency and scope of legal services delivered. 

In other words, take advantage of all these tools have to offer. Follow the Task Force’s recommendations, embrace your duty of technology competence, and begin learning about generative AI today.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software and LawPay payment processing, AffiniPay companies. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].