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The Florida Bar adopts guidance for AI: sounds like something AI would say

1/24/24

AI; computer; robot; artificial intelligence; computers; technology; gavel

By: Jessica Cauley

In November 2023, the Florida Bar’s Committee on Professional Ethics (“Committee”) first issued its Proposed Advisory Opinion on generative artificial intelligence (“AI”), joining few other states and judges to give ink to answer ever-growing questions about its appropriate use. On January 19, 2024, the Florida Bar unanimously approved the Committee’s efforts.  

The Opinion explicitly intends “to provide guidance” to Bar members throughout the state regarding the use of AI in their practice, starting with its defining characteristics as a program. Though the Florida Bar provided its proverbial blessing for AI use, the Committee emphasized each practitioner’s responsibility to uphold their ethical duties and highlights four areas of potential concern. Though not an exhaustive list, their approach to new ethical concerns instructs Bar members to recall and apply the existing Rules Regulating the Florida Bar (“Rules”), to the new technology. 

  1. Confidentiality of Client Information  

Prior to using AI for any client matter, the Committee first recommends performing due diligence on the intended program: 

  • Determine AI’s confidentiality obligations and security measures 
  • Investigate AI’s reputation and limitation of liability 
  • Confirm information retaining policy and potential proprietary rights 
  • Determine “self-learning” policy that may reveal provided information to future third-parties 

Consistent with Rule 4-1.6, the Committee points out that a client’s informed consent for disclosure of information to AI is not necessary where the information is not confidential. This requires the use of professional judgment in addition to a case-specific analysis.  

After this hurdle, practitioners should recall their ethical obligations in the new ways they present with the use of AI: 

  • Rule 4.1-1 Competence: To understand the benefits/risks of using AI 
  • Fla. Ethics Opinion 10-2: Proper maintenance and disposition of electronic devices containing stored data 
  • Rule 4.4-4(b) Rights of Third-Persons: Response to inadvertent disclosure of data not intended for recipient 
  1. Oversight of AI Use 

Consistent with standards for appropriate non-lawyer tasks, practitioners can analogize the corresponding Rule 4-5, to the use of AI: 

  • Rule 4-5.1 Responsibilities of Supervisory Lawyers: Lawyer must review, and ultimately be responsible for, AI work product similar to non-lawyers 
  • Rule 4-5.3 Responsibilities Regarding Non-Lawyer Assistants: Online “chatbots” need to identify as non-lawyers with appropriate disclaimers regarding legal relationship and legal advice 
  1. Implications for Fees and Costs 

The introduction of AI can potentially increase the efficiency of practice, however, the related impact on fees and costs must respect the existing obligations under Rule 4-1.5: 

  • Rule 4-1.5(e) and (f)(2) Duty to Communicate: Contingent fees and non-refundable fees must be explained in writing 
  • Rule 4-1.5(b): Excessive and duplicative fees are prohibited, consistent with factors to determine reasonableness of fees 
  • Rule 4-1.5(h) Credit Plans: Lawyers may only charge actual costs for AI incurred on client’s behalf, not overhead 
  • Like generalized background research, time spent developing minimal competency in the use of AI should not be charged to client 
  1. Lawyer Advertising 

Finally, Rule 4-7 prohibits a variety of misleading content and intrusive advertisements in the legal industry. The Committee noted the correlation to practitioner use of AI and warned against potential pitfalls: 

  • Rule 4-7.13 Deceptive Advertisements: Responsibility for chatbots that provide misleading information to potential clients 
  • Rule 4-7.15 Intrusive Advertisements: Responsibility for chatbots that unduly invokes an emotional response or offers financial incentive to potential clients 

Other Jurisdictions 

Multiple state bar associations have formed committees to study and report on ethical considerations of AI use in the legal industry in Texas, New York, New Jersey, Illinois, Kentucky, and Minnesota, as well as the American Bar Association. In November 2023, California’s Bar issued an Executive Summary for Guidance on the use of AI, with similar reference (and handy charts) to its existing ethical authorities. In 2024, we can expect formation of further committees and state approved guidance to take shape. 

Conclusion 

Like states and judges who have already offered guidance, Florida’s allowance for AI will no doubt increase its presence in legal tools in the coming years. Like any new tool, practitioners must understand its benefits, risks, and operation to properly integrate it into their practice. In the coming years, the Florida Bar will certainly be watching how practitioners retrofit AI, in observance of existing ethical obligations. 

For more information, contact Jessica Cauley or your local FMG attorney. 

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