Lately, there has been a great deal of publicity, information and misinformation about the use of generative artificial intelligence (GAI) by lawyers. While there is no one definition of artificial intelligence (AI), lawyers have used AI-based technologies in their practices for years. Lawyers use AI-assisted review in electronic discovery, contract analytics, basic research and other purposes.

Recently released ABA Formal Opinion 512 discusses ethical considerations in the use of GAI, which creates various types of new content in response to questions posed by a user. The opinion attempts to identify ethical issues with the use of GAI tools, which it describes as “a moving target – indeed, a rapidly moving target.” The opinion is segmented into broad categories of ethics issues within single rules and groups of related rules.

COMPETENCE: Rule 1.1

Rule 1.1 requires that a lawyer “provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment 6 makes clear that a lawyer must also “maintain the requisite knowledge and skill ... including the benefits and risks associated with relevant technology.” To do so, a lawyer “should either acquire a reasonable understanding of the benefits and risks of the GAI tools that they employ in their practices or draw on the expertise of others who can provide guidance about the relevant GAI tool’s capabilities and limitations.”

Lawyers must also understand that GAI may produce inaccurate content. GAI tools create content taken from the internet or other proprietary sources. The GAI tool may produce inaccurate, unreliable, incomplete or biased results, depending on the quality of the source material the tool uses. The GAI tool may also lack the ability to understand the meaning of information that is used and may, as ABA 512 notes, also “combine otherwise accurate information in unexpected ways to yield false or inaccurate results.”

ABA 512 also recognizes a fact that has been the subject of numerous news reports recently. “Some GAI tools are also prone to ‘hallucinations,’ providing ostensibly plausible responses that have no basis in fact or reality.” Uncritical reliance on such information may violate the duty to provide competent representation to a client under Rule 1.1.

CONFIDENTIALITY: Rule 1.6

Under Rule 1.6, a lawyer is required to keep confidential all information relating to the representation of a client unless the client gives informed consent, disclosure is impliedly authorized to carry out the representation or disclosure is permitted by an exception. Self-learning GAI tools pose a risk that confidential information may be disclosed improperly.

While a determination of the requirements of Rule 1.6 may be heavily fact-dependent, ABA 512 suggests that a lawyer consider the likelihood of disclosure or unauthorized access of confidential information along with the sensitivity of that information before inputting information relating to a client into a GAI tool. If informed consent is required, the lawyer must disclose specific information about the risk, client information to be disclosed, how that information may be used against the client’s interests and a clear explanation of the benefits of using the GAI tool.

COMMUNICATION: RULE 1.4

ABA 512 provides guidance about the extent to which communication about the use of GAI may be necessary to comply with Rule 1.4. The opinion clarifies that the determination of whether and what to disclose will depend on the circumstances of each case. Obviously, when informed consent is required, the lawyer must disclose the use of GAI. When disclosure is not required under Rule 1.4, a lawyer may wish to make such disclosure anyway. The most logical and effective place to make that disclosure would be in the lawyer’s employment contract.

MERITORIOUS CLAIMS AND CONTENTIONS AND CANDOR TOWARD THE TRIBUNAL: Rules 3.1, 3.3 and 8.4(c)

Rule 3.1 states, in part, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” Rule 3.3 prohibits making any false statement of fact or law to a tribunal. Rule 8.4(c) prohibits lawyers from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.”

When a GAI tool “hallucinates” or cites to nonexistent cases or otherwise provides inaccurate information, the use of that information in pleadings or arguments may violate any of the above rules. ABA 512 notes:

Some courts have responded by requiring lawyers to disclose their use of GAI. As a matter of competence, as previously discussed, lawyers should review for accuracy all GAI outputs. In judicial proceedings, duties 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.

SUPERVISORY RESPONSIBILITIES: RULES 5.1 AND 5.3

ABA 512 makes clear that lawyers with managerial duties must establish clear policies regarding the permissible use of GAI and supervise both lawyers and nonlawyers to ensure compliance with these policies. Supervisors must also make sure that both lawyers and nonlawyers are adequately trained in the ethical and practical uses of GAI. Training should also include the application of implicated rules. Supervisory responsibility extends to contractors or other providers outside of the law firm.

FEES: RULE 1.5

ABA 512 also addresses the effects of using GAI tools or services in the representation of a client. A lawyer must explain the reasoning behind and the basis for charging the client for the use of GAI tools or services. Lawyers may also wish to take into consideration how they bill when using those services. Flat or contingent fees may be more suitable for the lawyer and more affordable for the client.

CONCLUSION

Technology has transformed the practice of law during my career. Technology will transform the practice of law well into the future. As Rule 1.1 reminds us, lawyers have a duty to understand the benefits and risks associated with technology. I encourage all practitioners to read ABA 512 as an introduction to the ethical issues associated with GAI.

Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at richards@okbar.org or 405-416-7055. Ethics information is also online at www.okbar.org/ec.