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ABA issues formal guidance for lawyers’ use of generative AI

8/14/24

By: Sunshine R. Fellows

On July 29, 2024, the American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility issued its first opinion regarding attorneys’ use of generative artificial intelligence (“GAI”). Formal Opinion 512 on Generative Artificial Intelligence Tools confirms that while GAI can be a useful tool to increase efficiency in the practice of law, attorneys utilizing GAI need to appreciate the effect on their ethical obligations. Opinion 512 discusses the use of GAI in the context of six ethical obligations covered by the ABA Model Rules of Professional Conduct: competence, confidentiality, communication, candor toward the tribunal, supervisory responsibilities, and fees.   

Competence:  Under Model Rule 1.1, lawyers must exercise the “legal knowledge, skill, thoroughness and preparation reasonably necessary” for competent representation, as well as to understand “the benefits and risks associated” with technologies used for legal services. In regard to GAI, Opinion 512 clarifies: 

• Attorneys should have a reasonable and current understanding of the specific capabilities and limitations of any GAI tool they seek to employ, accounting for reliability, accuracy, completeness, and bias; 

• Attorneys should not rely on GAI outputs without independent verification or review; and 

• Although attorneys should independently verify or review generative AI outputs, they are not required to verify each and every output. Rather, the appropriate level of review depends on the specific task and tool used. 

Confidentiality:  Model Rule 1.6 requires lawyers to keep all information related to their representation of clients confidential, including by making reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, such information. Model Rules 1.9(c) and 1.18(b) extend similar protections to former and prospective clients. Opinion 512 recommends: 

• Prior to inputting information related to representation of a client into a GAI tool, attorneys should consider the likelihood of disclosure or unauthorized access to the information, the sensitivity of the information, the difficulty of implementing safeguards, and the extent to which safeguards would negatively impact the lawyer’s ability to represent the client; 

• Attorneys should be aware that “self-learning” GAI tools create risks that confidential information input into the tool may be disclosed to others and must obtain informed client consent prior to inputting confidential client information into such tools; and 

• Attorneys should understand any applicable terms associated with a GAI tool prior to its use and consult with qualified technical experts as appropriate. 

Communication:  Model Rule 1.4 covers lawyers’ duty to communicate with their clients. Lawyers might be required to disclose use of GAI to their clients in certain circumstances. For instance: 

• Attorneys must disclose their use of GAI tools if asked by the client how they conducted their work or whether GAI tools are used by the attorney; 

• Attorneys must be aware of and comply with any disclosure requirements included in their engagement agreements or in outside counsel guidelines; 

• Attorneys must consult with clients about the use of GAI, if such use is relevant to the basis or reasonableness of fees; and 

• Attorneys must consider whether there are other circumstances that warrant client consultation about the use of a GAI tool, considering the tool’s importance to a particular task, the significance of that task to the overall representation, how the tool will process the client’s information, and the extent to which knowledge of the lawyer’s use of the tool would affect the client’s evaluation of the lawyer’s work. 

Candor:  If GAI is used in litigation, attorneys’ ethical obligations also extend to the tribunal adjudicating the dispute. Model Rules 3.1, 3.3 and 8.4(c) on meritorious claims and contentions and candor toward a tribunal may apply: 

• Attorneys must carefully review AI outputs to assure that representations made to a tribunal using such outputs are not false or misleading and correct any such representations that have previously been made; and 

• Attorneys should be aware of any applicable local rules for proactive disclosure of use of GAI and make any necessary disclosures. 

Supervisory Responsibilities:  Model Rules 5.1 and 5.3 require managerial and supervisory lawyers to create effective measures to ensure that all lawyers and nonlawyer assistants conform to the rules of professional conduct. Opinion 512 notes that: 

• Managerial attorneys must establish clear policies regarding use of GAI. Such policies should provide for attorney and non-attorney training on GAI and ethical, practical, and other risks associated with AI use; and 

• Attorneys are required to ensure that any work outsourced to third-parties and performed with the assistance of GAI is consistent with any applicable legal ethical or professional obligations.  

Fees:  Under Model Rule 1.5, attorneys must ensure that their fees and expenses are reasonable and that they communicate with their clients about the basis for fees and expenses charged. Opinion 512 notes that: 

• GAI tools may allow attorneys to work more efficiently. Attorneys who bill clients on an hourly basis must bill for actual time spent working. Attorneys should also account for efficiencies when charging clients flat fees; 

• Attorneys may bill clients for disbursements but may not bill clients for general overhead expenses. If a tool supports a standard part of the lawyer’s legal practice, it should not be expensed to a client. By contrast, standalone expenses, such as GAI document review tools, may constitute reasonable out-of-pocket expenses that can be charged to the client; 

• Absent an advance agreement, attorneys may only charge clients direct costs associated with the GAI tool, plus reasonable expenses associated with providing the tool; and 

• Attorneys may not charge to clients the time they spend learning about a GAI tool that they will regularly use in their practice. However, if a client requests that a specific AI tool be used for their representation and the lawyer is not familiar with that tool, it may be appropriate to bill the client time spent learning about how to use the tool effectively. 

Compliance with ABA Formal Opinion 512 is not just a legal obligation but a commitment to ethical practice. By understanding and adhering to these guidelines, lawyers and law firms can leverage GAI tools effectively while upholding the highest professional standards. 

For more information, please contact Sunshine R. Fellows at sunshine.fellows@fmglaw.com or your local FMG attorney.