Balancing Innovation and Ethics: Kentucky Bar Association’s Preliminary Stance on AI for Lawyers

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

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Balancing Innovation and Ethics: Kentucky Bar Association’s Preliminary Stance on AI for Lawyers

The rapid advancement of generative artificial intelligence (AI) technology has had many effects, one of which has been to spur bar association ethics committees into action. In less than two years, at least eight jurisdictions have issued AI guidance in one form or another, including California, Florida, New Jersey, Michigan, and New York, which I’ve covered in this column. 

Most recently, I discussed a joint opinion from the Pennsylvania Bar Association Committee on Legal Ethics and Responsibility and the Philadelphia Bar Association Professional Guidance Committee, Joint Formal Opinion 2024-200, and promised to subsequently tackle Kentucky’s the Kentucky Bar Association’s March opinion, Ethics Opinion KBA E-457, which I’ll cover today. 

This opinion was issued in March and was published to the KBA membership in the May/June edition of the Bench & Bar Magazine. After the 30-day public comment period expires, it will become final.

This opinion covers a wide range of issues, including technology competency, confidentiality, client billing, notification to courts and clients regarding AI usage, and the supervision of others in the firm who use AI. 

Notably, when providing the necessary context for the guidance provided, the Committee wisely acknowledged that hard and fast rules regarding AI adoption by law firms are inadvisable since the technology is advancing rapidly, and every law firm will use it in different, unique ways: “The Committee does not intend to specify what AI policy an attorney should follow because it is the responsibility of each attorney to best determine how AI will be used within their law firm and then to establish an AI policy that addresses the benefits and risks associated with AI products. The fact is that the speed of change in this area means that any specific recommendation will likely be obsolete from the moment of publication.”

Accordingly, the Committee’s advice was fairly elastic and designed to change with the times as AI technology improves. The Committee emphasized the importance of maintaining technology competency, which includes staying “abreast of the use of AI in the practice of law,” along with the corresponding duties to continually take steps to maintain client confidentiality and to carefully “review court rules and procedures as they relate to the use of AI, and to review all submissions to the Court that utilized Generative AI to confirm the accuracy of the content of those filings.”

As other bar associations have done, the Kentucky Bar Ethics Committee also highlighted the issues surrounding client communication and billing when using AI to streamline legal work. 

Departing from the hard and fast requirement that some bars have put in place regarding notifying clients whenever AI is used in their matter, the Committee took the more moderate approach. It required that lawyers do so only under certain circumstances. The Committee explained that there is no “ethical duty to disclose the rote use of AI generated research for a client's matter unless the work is being outsourced to a third party; the client is being charged for the cost of AI; and/or the disclosure of AI generated research is required by Court Rules.” 

Next, the Committee determined that when invoicing a client for work performed more efficiently when using AI, lawyers should “consider reducing the amount of attorney's fees being charged the client when appropriate under the circumstances.” Similarly, lawyers may pass on expenses related to AI software if there is an acknowledgment in writing whereby the client agrees in advance to reimburse the attorney for the attorney's expense in using AI.” However, the Committee cautioned that the “costs of AI training and keeping abreast of AI developments should not be charged to clients.”

Finally, the Committee confirmed that lawyers who are partners or managers have a duty to ensure the ethical use of AI by other lawyers and employees, which involves appropriate training and supervision.

This opinion provides a thorough analysis of the issues and sound advice regarding AI usage in law firms. I’ve only hit the high points, so make sure to read the entire opinion for the Committee’s more nuanced perspective, especially if you are a Kentucky attorney. AI is here to stay and will inevitably impact your practice, likely much sooner than you might expect, given the rapid change we’re now experiencing. Invest time into learning about this technology now, so you can adapt to the times and incorporate it into your law firm, ultimately providing your clients with more efficient and effective representation.

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 LawPaypayment 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].