A Lawyer’s Guide to Ethical Use of AI

You’ve heard about how generative artificial intelligence (GAI) can dramatically streamline your workflows, saving your firm time and money. The promises of immediate efficiency gains are intriguing, and you’d like to give this popular new technology a test run. But you’re concerned about ethics. How do you take advantage of all that AI has to offer while ensuring compliant implementation?

It’s an important and timely question. GAI is a relatively new technology, but it’s making inroads quickly. Because of increasing interest in AI in the legal industry over the past two years, more than twelve state bars have issued ethical guidance on GAI adoption. The approach is similar across jurisdictions, with state-specific variation on issues like client consent and supervision.

In this article, we’ll discuss the ethical rules to consider when using legal AI tools, how certain jurisdictions (including the American Bar Association) have addressed these issues, and core ethical principles for AI adoption.

A GAI Ethics Deep Dive

The American Bar Association’s Formal Opinion 512, handed down in July 2024, mirrors a range of ethical issues addressed in guidance from other jurisdictions. This opinion's roadmap for AI adoption offers a helpful overview of considerations to keep in mind when implementing AI in your firm.

First, the Committee emphasizes the importance of staying abreast of technology changes. The duty of professional competence requires that lawyers learn about emerging technologies, including GAI, ensuring they make educated GAI implementation decisions. This obligation includes fully understanding the benefits and risks of adoption: “Lawyers need not become GAI experts. Rather, lawyers must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use.”

The Committee focuses on confidentiality, warning lawyers to protect client data when entering information into GAI tools. Lawyers must fully comprehend how the GAI system handles and stores data, which includes ensuring that it doesn’t inadvertently expose sensitive information: “Before lawyers input information relating to the representation of a client into a GAI tool, they must evaluate the risks of disclosure.” 

Importantly, the Committee advises lawyers to obtain informed consent from clients before inputting information related to their representation into GAI tools. However, not all jurisdictions have this requirement, so it’s important to carefully review available guidance from your jurisdiction on this issue.

The ABA opinion includes guidance on supervisory obligations, indicating that lawyers are responsible for ensuring that all staff using GAI are adequately trained and supervised. Policies and procedures should be established and disseminated throughout the firm. Additionally, the accuracy of all GAI tool outputs, including those provided by staff, should be confirmed. Lawyers should assume that GAI output contains errors and should, therefore, carefully review all GAI-created content for errors.

Candor toward the tribunal is also addressed. The Committee confirmed that lawyers have an ethical duty to carefully review all GAI-generated work product: “Duties to the tribunal likewise require lawyers, before submitting materials to a court, to review these outputs, including analysis and citations to authority, and to correct errors, including misstatements of law and fact, a failure to include controlling legal authority, and misleading arguments.”

Finally, the ABA tackled the ethical issues encountered when billing clients for time spent using GAI tools. According to the opinion, billing should reflect the actual time and effort spent working on a matter. Clients should not be billed for the time saved as a result of using GAI. Accordingly, lawyers may need to adjust their fee structures or advise clients when GAI is used to ensure that billing is clear and fair.

Core Ethical GAI Principles 

While the ABA’s opinion is only advisory, it provides an overview of the ethical issues that lawyers must consider when adopting GAI. Guidance issued in other jurisdictions follows a similar analytical framework. The details may differ somewhat but the essential principles remain the same: when considering GAI tools for their firms, lawyers must fully understand the who, what, when, where, and how of its adoption.

To that end, five key issues are consistently addressed in the ethics guidance provided by state bars:

Jurisdiction-Specific Guidance

Although some general ethics principles apply universally, GAI guidance varies across jurisdictions. For example, some require client consent, while others do not. Additionally, delegation of certain GAI-related tasks to non-lawyers or vendors is permitted in some jurisdictions, while others emphasize direct lawyer oversight for any GAI-generated work. Specific GAI-related cybersecurity protocols are mandated in some opinions, but others suggest general cybersecurity procedures are sufficient. There are also variances regarding specific disclosure requirements when billing clients for work performed using GAI tools.

The many differences mean that it is essential to understand how the Rules of Professional Conduct are interpreted in your jurisdiction. The jurisdictions listed below have addressed the ethics of using GAI in law firms. If your state is not listed, you’ll have to apply the general GAI ethics principles above and interpret them narrowly. When your license is on the line, you’re better safe than sorry.

If your jurisdiction has weighed in, you’re one of the lucky ones with a clear roadmap for GAI adoption. Locate your jurisdiction in the chart below and then carefully review the applicable guidance. 

The Path to Ethical GAI Adoption

As GAI technology continues to gain traction in the legal field, more jurisdictions will undoubtedly issue additional guidance to address emerging ethical concerns. Staying informed and adaptable will ensure your firm remains compliant while maximizing the many advantages GAI has to offer.

With this in mind, it’s clear that GAI offers powerful tools to streamline workflows, improve efficiency, and reduce costs, making it an invaluable asset for modern law firms. By thoughtfully adopting GAI within ethical boundaries—maintaining competence, protecting confidentiality, and verifying outputs—firms can harness these benefits without compromising professional responsibilities. 

When considering GAI software, it may give you peace of mind to partner with a company that has developed a tool built with lawyers and their specific needs in mind. 

For example, MyCase IQ is a responsible GAI that can be embedded throughout your practice management software. It empowers you to work faster and smarter with intelligent text editing, AI-powered document summaries, and translation capabilities. Learn more about MyCase IQ and what your firm can accomplish with it here.