More AI Ethics Guidance Arrives With Pennsylvania Weighing In
July 01, 2024
Here is my recent Daily Record column. My past Daily Record articles can be accessed here.
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More AI Ethics Guidance Arrives With Pennsylvania Weighing In
The rate of technological change this year has been off the charts. Lately, there’s daily news of generative artificial intelligence (AI) announcements about new products, feature releases, or acquisitions. Advancement has been occurring at such a rapid clip that it’s more challenging than ever to keep up with the pace of change — blink, and you’ll miss it!
Given how quickly AI has infiltrated our lives and profession, it’s been all the more impressive to watch bar association professional disciplinary committees step up to the plate and issue timely, much-needed guidance. Even though generative AI has been around for less than two years, California, Florida, New Jersey, Michigan, and New York had already issued GenAI guidance for lawyers as of April 2024.
Just a few months later, two other states, Pennsylvania and Kentucky, have weighed in, providing lawyers in their jurisdictions with roadmaps for ethical AI usage. Today, I’ll discuss the Pennsylvania guidance and will cover Kentucky’s in my next article.
On May 22, the Pennsylvania Bar Association Committee on Legal Ethics and Responsibility and the Philadelphia Bar Association Professional Guidance Committee issued Joint Formal Opinion 2024-200. In the introduction to the opinion, the joint Committee explained why it is critical for lawyers to learn about AI: “This technology has begun to revolutionize the way legal work is done, allowing lawyers to focus on more complex tasks and provide better service to their clients…Now that it is here, attorneys need to know what it is and how (and if) to use it.” A key way to meet that requirement is to take advantage of “continuing education and training to stay informed about ethical issues and best practices for using AI in legal practice.”
The joint Committee emphasized the importance of understanding both the risks and benefits of incorporating AI into your firm’s workflows. It also stated that if used appropriately and “with appropriate safeguards, lawyers can utilize artificial intelligence” in a compliant manner.
The opinion included many recommendations and requirements for lawyers planning to use AI in their practices. First and foremost, the Committees emphasized basic competence and the need to “ensure that AI-generated content is truthful, accurate, and based on sound legal reasoning.” This obligation requires lawyers to confirm “the accuracy and relevance of the citations they use in legal documents or arguments.”
Another area of focus was on protecting client confidentiality. The joint Committee opined that lawyers must take steps to vet technology providers with the end goal being to “safeguard information relating to the representation of a client and ensure that AI systems handling confidential data adhere to strict confidentiality measures.”
Notably, the joint Committee highlighted the importance of ensuring that AI tools and their output are unbiased and accurate. This means that when researching a product and provider, steps must be taken to “ensure that the data used to train AI models is accurate, unbiased, and ethically sourced to prevent perpetuating biases or inaccuracies in AI-generated content.”
Transparency with clients was also discussed. Lawyers were cautioned to ensure clear communication “with clients about their use of AI technologies in their practices…(including) how such tools are employed and their potential impact on case outcomes.” Lawyers were also advised to clearly communicate with clients about AI-related expenses, which should be “reasonable and appropriately disclosed to clients.”
This guidance — emphasizing competence, confidentiality, and transparency —is a valuable resource for lawyers seeking to integrate AI into their practices. This timely advice helps ensure ethical AI usage in law firms, especially for Pennsylvania practitioners. For even more helpful ethics analysis, stay tuned for my next article, where we’ll examine Kentucky's recent AI guidance.
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].