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AI and Ethical Concerns for Legal Practitioners

January 08, 2024 (5 min read)
A man standing at a fork in the path in a forest. One path leads upward and is lighter, the other downward and darker.

By Tracy Duplantier

Practicing lawyers knows that Rule 1.1 of the ABA Model Rules of Professional Conduct requires that “a lawyer shall provide competent representation to a client” and that this duty “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

More than 40 states have adopted Comment 8 to Rule 1.1, which says that “to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” This mandate establishes that lawyers have an ethical duty to be professionally competent with the use of technology in the practice of law.

It was my pleasure to recently host a CLE webinar, “Technology and the Legal Practitioner: Ethical Concerns and Best Practices,” which reviews the ethical duties that lawyers have with respect to the use of technology in their everyday practice. In this session we reviewed specific areas of technology and how various legal ethical rules apply to each of them: Email; Word; Redaction; Cybersecurity; Artificial Intelligence; Social Media; and Legal research.

The topic on the list that is arguably attracting the most attention in the legal industry right now is the emergence of generative artificial intelligence (AI), leading attorneys to actively consider: What are the ethical concerns surrounding the use of AI by legal practitioners?

And on the flipside: Do Ethical Rules Require Use (or at least the consideration of the use) of AI?

After all, there was a time when email, computer-assisted research and document redaction were considered novel — perhaps AI is simply the latest example of a technology that is on its way to becoming standard practice in the profession. And if that’s the case then Lawyers would certainly need to consider whether (and under what circumstances) the ABA Model Rule 1.1, Comment 8, would create an ethical duty for lawyers to embrace AI in their practices.

Legal observers also point to other ethical duties that may be attached to the use of AI in legal practice. “A lawyer’s failure to use AI could implicate ABA Model Rule 1.5, which requires lawyer’s fees to be reasonable,” reported Corporate Counsel, in a story headlined, “Could It Be Unethical Not to Use AI?” The article cites a report from the ABA, which contemplates that “failing to use AI technology that materially reduces the costs of providing legal services arguably could result in a lawyer charging an unreasonable fee to a client.”

Moreover, ABA Model Rule 1.3 requires a lawyer to act with reasonable diligence and promptness in client matters. “If an AI solution could have avoided the need to seek an extension which irks the court or delays a deal, a lawyer may have to consider whether abstaining from AI runs afoul of the promptness requirement under Rule 1.3,” writes Corporate Counsel.

3 Key Areas of Legal Ethics and AI

The inclusion of Generative AI in the legal world creates additional ethical considerations for lawyers seeking to implement the new technology in their day-to-day legal practices. In “AI and Legal Ethics: What Lawyers Need to Know,” a practice note published by Lexis Practical Guidance, a trio of attorneys from HWG LLP — Hilary Gerzhoy, Julienne Pasichow and Grace Wynn — explore the various ethical issues that legal professionals must be aware of when considering the use of generative AI technology in their practices.

“AI is perhaps the single most ‘relevant technology’ of our time,” write the authors. “Lawyers may therefore find themselves in an increasingly fraught situation, where the ethical rules encourage use of AI, but also impose discipline for the various ways it can be misused.”

The authors note three key areas of legal ethics and accountability when it comes to the use of AI in client representations:

Lawyers must oversee any work done by AI

Proper oversight is essential to the use of AI tools in the practice of law. Relying on AI-generated or informed work product does not meet the ethical duty of professional competence if a lawyer does not understand how the AI operates and play an active role in the oversight of any work product it generates. Work product and conclusions reached by AI cannot replace human judgment and must be reviewed by lawyers for completeness and accuracy.

Client confidentiality must be protected

Protection of client confidentiality is perhaps the most fundamental duty in the legal profession. This standard naturally applies when a lawyer is using AI in the course of representing a client. All lawyers should take precautionary measures to understand the AI system’s operative security policies, including the extent to which documents are retained, the time frame for which they are preserved, any encryption technology, who can view the information, and incident response plans in the event of a data breach.

Lawyers have a duty to communicate with the client regarding use of AI

As a general matter, clients choose the objectives of a legal representation and lawyers choose the strategy to achieve those objectives — but lawyers are required by the Model Rules to “consult with the client” about the means they choose in pursuit of their client’s goals. This means that if an AI tool is writing legal documents, a client must be told and given the opportunity to object. It follows that when a lawyer plans to use AI, including document review or generation technology, the client should be kept apprised of such plans so that the client can make informed decisions regarding the representation.

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