Practical and Adaptable AI Guidance Arrives From the Virginia State Bar

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

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Practical and Adaptable AI Guidance Arrives From the Virginia State Bar 

If you're concerned about the ethical issues surrounding artificial intelligence (AI) tools, the good news is that there's no shortage of guidance. A wealth of resources, guidelines, and recommendations are now available to help you navigate these concerns. 

Traditionally, bar associations have taken years to analyze the ethical implications of new and emerging technologies. However, generative AI has reversed this trend. Ethics guidance has emerged far more quickly, which is a very welcome change from the norm.

Since the general release of the first version of ChatGPT in November 2022, ethics committees have stepped up to the plate and offered much-needed AI guidance to lawyers at a remarkably rapid clip. Jurisdictions that have weighed in include California, Florida, New Jersey, Michigan, New York, Pennsylvania, Kentucky, and the American Bar Association. 

Recently, Virginia entered the AI ethics discussion with a notably concise approach. Unlike the often lengthy and detailed analyses from other jurisdictions, the Virginia State Bar issued a streamlined set of guidelines, available as an update on its website (accessible online at the bottom of the page: https://vsb.org/Site/Site/lawyers/ethics.aspx). This approach stands out not only for its brevity but also for its focus on providing practical, overarching advice. By avoiding the intricacies of specific AI tools or interfaces, the Virginia State Bar has ensured that its guidance remains flexible and relevant, even as the technology rapidly evolves.

Importantly, the Bar acknowledged that regardless of the type of technology at issue, lawyers’ ethical obligations remain the same: “(A) lawyer’s basic ethical responsibilities have not changed, and many ethics issues involving generative AI are fundamentally similar to issues lawyers face when working with other technology or other people (both lawyers and nonlawyers).”

Next, the Bar examined confidentiality obligations, opining that just as lawyers must review data-handling policies relating to other types of technology, so, too, must they vet the methods used by AI providers when handling confidential client information. The Bar explained that while legal-specific providers can often promise better data security, there is still an obligation to ensure a full understanding of their data management approach: “Legal-specific products or internally-developed products that are not used or accessed by anyone outside of the firm may provide protection for confidential information, but lawyers must make reasonable efforts to assess that security and evaluate whether and under what circumstances confidential information will be protected from disclosure to third parties.”

One area where the Bar’s approach conformed to that of most jurisdictions was client consent. While the ABA suggested explicit client consent when using AI was required in many cases, the Bar agreed with most other ethics committees, concluding that there “is no per se requirement to inform a client about the use of generative AI in their matter” unless there are extenuating circumstances like an agreement with the client or increased risks like those encountered when using consumer-facing products.

The Bar also considered supervisory requirements, emphasizing the importance of reviewing all output just as you would regardless of the source. According to the Bar, as “with any legal research or drafting done by software or by a nonlawyer assistant, a lawyer has a duty to review the work done and verify that any citations are accurate (and real)” and that that duty of supervision “extends to generative AI use by others in a law firm.”

Next, the Bar provided insight into the impact of AI usage on legal fees. The Bar agreed that lawyers cannot charge clients for the time saved as a result of using AI: “A lawyer may not charge an hourly fee in excess of the time actually spent on the case and may not bill for time saved by using generative AI. The lawyer may bill for actual time spent using generative AI in a client’s matter or may wish to consider alternative fee arrangements to account for the value generated by the use of generative AI.”

On the issue of passing the costs of AI software on to clients, the Bar concluded that doing so was not permissible unless the fee is both reasonable and “permitted by the fee agreement.”

Finally, the bar focused on a handful of recent court rules issued that forbid the use of AI for document preparation, highlighting the importance of being aware of and complying with all court disclosure requirements regarding AI usage.

The Virginia State Bar’s flexible and practical AI ethics guidance offers a valuable framework for lawyers as they adjust to the ever-changing generative AI landscape. By focusing on overarching principles, this thoughtful approach ensures adaptability as technology evolves. For those seeking reliable guidance, Virginia’s model offers a useful roadmap for remaining ethically grounded amid unprecedented technological advancements.

Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at MyCase, CASEpeer, Docketwise, and LawPay, practice management and payment processing tools for lawyers (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].