Lawyers' ethical rules already apply to AI. Bar regulators have spelled out how.
ABA Formal Opinion 512 (July 2024)
The American Bar Association's first formal opinion on generative AI applies the Model Rules to AI tools:
- Competence (Rule 1.1): understand the capabilities and limits of the tools you use, and independently verify output. You don't need to be an AI expert.
- Confidentiality (Rule 1.6): assess the risk that client information is disclosed or used by a "self-learning" tool. Before inputting client information into such a tool, informed client consent is required, and boilerplate in an engagement letter is not enough.
- Communication (Rule 1.4): in some cases tell clients about AI use, for example when it affects the representation or fees, or when the client asks.
- Candour and meritorious claims (Rules 3.1, 3.3): review output for invented law before filing.
- Supervision (Rules 5.1, 5.3): managerial lawyers need clear AI policies and training, and must supervise staff and vendors.
- Fees (Rule 1.5): don't bill for time not actually spent, and don't charge clients for learning a tool for general use.
State and national guidance
State bars have published guidance too, including the State Bar of California's practical guidance (November 2023) and Florida Bar Ethics Opinion 24-1 (January 2024). Outside the U.S., regulators and courts have issued similar warnings. The common themes: confidentiality, verification, supervision and honest billing.
For in-house lawyers
In-house lawyers are bound by the same rules. The "client" is the company, which simplifies consent but not confidentiality: the company's information, and third-party information it holds, still needs protecting.