As technology continues to reshape the legal landscape, law firms are increasingly exploring how generative artificial intelligence (GAI) tools can enhance their operations. From drafting documents to conducting legal research, GAI tools promise efficiency and innovation. However, as with any new technology, there are ethical implications to consider. ABA Formal Opinion 512, issued on July 29, 2024, provides essential guidance for legal administrators on the ethical use of these tools. Here’s a breakdown of the key takeaways and what they mean for your firm.

Competency in Using GAI Tools

Lawyers have an ethical duty to provide competent representation, which now includes understanding the benefits and risks of using GAI tools. This doesn’t mean every lawyer needs to become a technology expert, but they must have a reasonable understanding of the capabilities and limitations of the tools they use. Legal administrators play a crucial role in ensuring that all legal staff are appropriately trained and that the firm maintains ongoing education about evolving GAI technologies.

Action Item: Implement training sessions and resources to keep your team informed about the latest developments in GAI tools relevant to legal practice. Ensure that all staff understand the ethical implications of using these technologies.

Confidentiality and Client Information

One of the most significant concerns with using GAI tools is maintaining client confidentiality. Lawyers must evaluate whether inputting information into a GAI tool could lead to unauthorized access or disclosure. If there is a risk, client consent is required before using such tools. This is especially pertinent for self-learning GAI tools that might inadvertently use client information to generate content for unrelated queries.

Action Item: Review your firm’s policies on data privacy and ensure that any use of GAI tools complies with these standards. Establish protocols for obtaining informed client consent where necessary and evaluate the terms of use and privacy policies of any GAI tools before integrating them into your practice.

Communication and Client Disclosure

Even if Model Rule 1.6 (confidentiality) doesn’t mandate disclosure, lawyers must still consider whether Model Rule 1.4 (communication) requires them to inform clients about the use of GAI tools. This is particularly important if the use of such tools could impact the client’s decisions or if the client has specifically asked about the methods employed in their representation.

Action Item: Develop a clear communication strategy for informing clients about the use of GAI tools. This can include updates to engagement letters or client communications that explain the tools’ purpose, benefits, and any potential risks.

Supervisory Responsibilities

Legal administrators must ensure that all firm employees, including nonlawyer staff, understand the ethical use of GAI tools. This extends to overseeing any third-party service providers that might be using these tools on behalf of the firm. Supervisory lawyers must create policies to govern the use of GAI tools and ensure compliance with these policies.

Action Item: Establish and enforce firm-wide policies regarding the use of GAI tools, including detailed guidelines on supervision and training. Regularly review and update these policies to reflect technological advancements and changes in ethical guidance.

Reasonable Fees and Billing Practices

When using GAI tools, lawyers must charge clients reasonably for the time and resources expended. This means that if a GAI tool significantly reduces the time needed to complete a task, billing must reflect the actual time spent. Firms cannot inflate billing simply because a GAI tool was used. The same applies when GAI tools are used as part of overhead or charged as an expense.

Action Item: Review your billing practices to ensure that charges for the use of GAI tools are transparent and reflect the actual time and cost involved. Consider incorporating GAI tool costs into overhead where appropriate and communicate any changes in billing practices to clients upfront.

Preparing for the Future

GAI technology is rapidly evolving, and what is considered competent use today may change as these tools become more integrated into legal practice. Legal administrators must stay vigilant, continuously educating themselves and their teams on both the capabilities of GAI tools and the ethical standards that govern their use.

Action Item: Stay proactive by attending relevant CLE sessions, engaging with technology experts, and regularly reviewing firm policies to ensure they keep pace with technological advancements and ethical obligations.

Conclusion

ABA Formal Opinion 512 sets the standard for the ethical use of generative AI tools in legal practice. Legal administrators are at the forefront of ensuring that their firms not only comply with these ethical obligations but also leverage GAI tools effectively and responsibly. By implementing robust training, clear communication, and transparent billing practices, legal administrators can help their firms navigate the complexities of integrating GAI technology into legal operations.

For more information or guidance on integrating GAI tools ethically into your practice, feel free to contact us at Innovative Computing Systems.