The ABA Weighs in on the Ethical Use Of AI

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

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The ABA Weighs in on the Ethical Use Of AI

Generative artificial intelligence (GenAI) is advancing at exponential rates. Since the release of GPT-4 less than two years ago, there has been an explosion of GenAI tools designed for legal professionals. With the rapid proliferation of software incorporating this technology comes increased concerns about ethical and secure implementation. 

Ethics committees across the country have stepped up to the plate to offer guidance to assist lawyers seeking to adopt GenAI into their firms. Most recently, the American Bar Association weighed in, handing down Formal Opinion 512 at the end of July. 

In its opinion, the ABA Standing Committee on Ethics and Professional Responsibility acknowledged the significant productivity gains that GenAI can offer legal professionals, explaining that GenAI “tools offer lawyers the potential to increase the efficiency and quality of their legal services to clients…Lawyers must recognize inherent risks, however." 

Importantly, the Committee also cautioned that when using these tools, lawyers “lawyers may not abdicate their responsibilities by relying solely on a GAI tool to perform tasks that call for the exercise of professional judgment.” In other words, while GenAI can significantly increase efficiencies, lawyers should not rely on it at the expense of their personal judgment.

Next, the Committee addressed the key ethical issues presented when lawyers incorporate GenAI tools into their workflows. First and foremost, technology competency was emphasized. According to the Committee, lawyers must stay updated on the evolving nature of GenAI technologies and have a reasonable understanding of the technology’s benefits, risks, and limitations.

Confidentiality obligations were also discussed, and the Committee highlighted the need to ensure that GenAI does not inadvertently expose client data and that systems should not be allowed to train on confidential data. Notably, the Committee required lawyers to obtain informed client consent before using these tools in ways that could impact client confidentiality, especially when using consumer-facing tools that train on inputted data.

The Committee also provided guidance on supervision requirements, advising that lawyers in managerial roles must ensure compliance with their firms’ established GenAI policies. The supervisory duty includes implementing policies, training personnel, and supervising the use of AI to prevent ethical violations.

The Committee highlighted the importance of reviewing all GenAI output to ensure its accuracy: “(D)uties to the tribunal likewise require lawyers, before submitting materials to a court, to review these outputs, including analysis and citations to authority, and to correct errors, including misstatements of law and fact, a failure to include controlling legal authority, and misleading arguments.”

Finally, the Committee offered insight into the ethics of legal fees charged when using GenAI to address client matters. The Committee explained that lawyers may charge fees encompassing the time spent reviewing AI-generated outputs but may not charge clients for time spent learning to use GenAI software. Importantly, it is impermissible for lawyers to invoice clients for time that would have been spent on work but for the efficiencies gained from using GenAI tools. In other words, clients can only be billed for the work completed, not for time saved due to GenAI.

Each new ethics opinion, like ABA Formal Opinion 512, offers much-needed guidance that enables lawyers to integrate AI tools into their firms thoughtfully and responsibly. By addressing emerging concerns and providing clear standards, these opinions reduce uncertainty and pave the way for forward-thinking lawyers to adopt GenAI confidently. While the ABA’s opinion is only advisory, it represents a positive trend of responsive guidance that arms the legal profession with the information needed to innovate ethically and adopt emerging technologies in today’s ever-changing AI era.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Principal Legal Insights Strategist at MyCase, LawPay, CASEpeer, and Docketwise, 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].