ABA’s Landmark Opinion on Generative AI

A National Shift Towards Embracing the Place of Generative AI in Law

Yesterday, the American Bar Association (ABA) took a significant step forward in addressing the role of artificial intelligence in the legal profession. On July 29, 2024, the ABA released Formal Opinion 512, providing thoughtful and comprehensive ethics guidance on the use of “Generative Artificial Intelligence Tools” in legal practice. This important opinion represents a pivotal moment in the U.S. legal landscape, signaling a growing recognition of generative AI as a valuable and beneficial technology for the practice of law.

A Shift in Perspective

The ABA’s new guidance marks an important shift in how the legal profession views generative AI. While not explicitly mandating its use, the opinion certainly suggests that understanding and potentially utilizing generative AI tools is becoming increasingly important for competent legal practice. This perspective aligns with the evolving nature of legal technology competence, drawing parallels to how use of email, computerized legal research, and eDiscovery have become standard skills in the lawyer’s arsenal of tool use.

Recognizing the Benefits

Formal Opinion 512 acknowledges the potential of generative AI to enhance both the efficiency and quality of legal services. By highlighting these benefits, the ABA is effectively encouraging lawyers to explore and consider how these tools might improve their practice and better serve their clients. This recognition is a clear indication that the legal profession is moving towards embracing innovative technologies rather than viewing them primarily with skepticism.

Balancing Innovation and Ethics

While the opinion is forward-thinking in its approach to generative AI, it appropriately emphasizes the importance of responsible use. The guidance carefully outlines how existing ethical rules apply to this new technology, ensuring that the core values of the legal profession are maintained even as new tools are adopted. This balanced approach demonstrates the ABA’s commitment to fostering innovation while upholding the highest standards of professional conduct.

Ethical Considerations

The ABA Formal Opinion 512 outlines several crucial ethical considerations for lawyers using generative artificial intelligence (GAI) tools in legal practice. These considerations include maintaining competence, ensuring confidentiality, proper communication with clients, and upholding supervisory responsibilities. Below are the key points and recommendations for alignment with the opinion:

Competence:

• Lawyers must have a reasonable understanding of the capabilities and limitations of the GAI tools they use. This includes understanding the potential for inaccurate outputs, such as hallucinations or biased content, due to the underlying data or algorithms. Lawyers must independently verify and review the accuracy of GAI outputs and should not rely solely on these tools without applying their professional judgment. Continuous learning and staying updated with advancements in GAI technology are necessary to maintain competence.

Confidentiality:

• Protecting client information is paramount when using GAI tools. Lawyers must evaluate the risks of unauthorized disclosure or access, particularly when using self-learning GAI tools. These tools can potentially expose client information in unintended ways, necessitating informed consent before inputting sensitive data. The opinion emphasizes that informed consent must be specific and clear, detailing the risks and benefits of using such tools. General boilerplate provisions in engagement letters are insufficient for this purpose.

Communication:

• Lawyers are required to inform clients about the use of GAI tools when it impacts the representation. This includes situations where the use of GAI affects fees, decision-making processes, or significantly influences case outcomes. Disclosure is also necessary if clients inquire about the use of these tools. Lawyers must provide adequate explanations to enable clients to make informed decisions, adhering to Model Rule 1.4.

Supervisory Responsibilities:

• Supervisory lawyers must implement policies and training programs to ensure the ethical use of GAI tools within their firms. This includes overseeing both lawyers and non-lawyers to ensure compliance with professional standards. Training should cover the ethical and practical aspects of using GAI tools, including data security, privacy, and the limitations of these technologies. Supervisors must ensure that any use of GAI tools by non-lawyers aligns with ethical guidelines and does not compromise client confidentiality or the quality of legal services.

Fees:

• Lawyers must charge reasonable fees for the use of GAI tools, clearly communicating the basis for these charges to clients. They cannot bill clients for time spent learning to use GAI tools unless specifically agreed upon. If a GAI tool is used to expedite tasks, the fees must reflect the actual time spent and the efficiency gained. Disbursements related to GAI tools must be reasonable and transparently communicated, avoiding any additional profit beyond the actual cost incurred.

These ethical considerations underscore the importance of responsible and transparent use of GAI tools in legal practice. The ABA’s guidance helps ensure that the adoption of these technologies enhances legal services while maintaining the profession’s highest ethical standards.

It is especially encouraging to see the explicit recognition of the need for continuous vigilance given the dynamic evolution of this technology. The opinion holds that lawyers must stay updated with technological advancements and ethical standards to provide competent legal services and, critically, that further guidance is anticipated as GAI tools and their applications evolve.

Building on State-Level and MIT Initiatives

It’s noteworthy that the ABA’s guidance specifically cites the exemplary work done by state bar associations that have released rules and ethics opinion on the topic. This acknowledgment reflects a growing consensus across the legal community about the importance of addressing generative AI in legal practice. Moreover, it’s encouraging to see that ideas and approaches originating from initiatives like the MIT Task Force on Responsible Use of Generative AI for Law are now being more fully integrated into mainstream legal thinking.

The ABA’s Formal Opinion 512 represents a significant milestone in the legal profession’s journey towards embracing generative AI. By providing clear, thoughtful guidance on how to apply existing ethical rules to this new technology, the ABA is not standing in the way for lawyers to responsibly harness the power of AI to enhance their practice and better serve their clients. As the legal landscape continues to evolve, this opinion will undoubtedly serve as a crucial reference point for lawyers navigating the exciting intersection of law and artificial intelligence.