Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

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California Ethics Committee is First to Weigh in On AI

Back in August, I discussed the imminent arrival of legal ethics opinions on generative AI tools. Since then, a small number of pioneering lawyers have experimented with this technology even without ethics guidance. For those who have been holding off until an ethics committee weighed in, your wait is over. 

As we head into the final month of 2023, you’ll be happy to know that ethics guidance focused on generative AI was published on November 16 by the State Bar of California’s Committee on Professional Responsibility and Conduct (COPRAC). 

It provides a thorough roadmap for generative AI adoption in law firms. 

At the outset, COPRAC explained that AI in its current state is simply a new kind of technology and does not warrant special treatment. As a result, “the existing Rules of Professional Conduct are robust, and the standards of conduct cover the landscape of issues presented by generative AI in its current forms. However, COPRAC recognizes that generative AI is a rapidly evolving technology that presents novel issues that might necessitate new regulation and rules in the future.”

The guidance provided by COPRAC was extensive, addressing many different ethical issues. Issues addressed included technology competence, confidentiality, and the requirement of candor, both with legal clients and courts. Below you’ll find some of the most notable takeaways.

The first topic tackled was the duty of confidentiality. According to COPRAC, lawyers “must not input any confidential information of the client into any generative AI solution that lacks adequate confidentiality and security protections.” The overarching obligation lawyers have in this regard is to fully vet AI providers and their products (or have an IT consultant do this on your firm’s behalf) so that you fully understand how confidential data will be handled and protected.

COPRAC also addressed technology competence, explaining that lawyers must learn, to a reasonable degree, “how the technology works, its limitations, and the applicable terms of use and other policies governing the use and exploitation of client data by the product.” In addition to ensuring an understanding of generative AI, the ethics rules also require that AI outputs be carefully reviewed for accuracy and bias.

Next up was the duty of supervision. COPRAC explained that supervisory and managerial attorneys must ensure that clear policies are in place that address permissible uses of AI. Those measures must provide “reasonable assurance that the firm’s lawyers and non lawyers’ conduct complies with their professional obligations when using generative AI.”

COPRAC further emphasized the importance of full candor with courts and clients. To that end, lawyers should carefully review all generative AI outputs for accuracy and correct any errors before submission to courts. The committee cautioned that “(o)verreliance on AI tools is inconsistent with the active practice of law and application of trained judgment by the lawyer…and AI-generated outputs can be used as a starting point but must be carefully scrutinized.”

Similarly, client communication obligations require that lawyers consider disclosing their intention to use generative AI to clients, “including how the technology will be used, and the benefits and risks of such use.” The committee also advised lawyers to be aware of any client directives that might conflict with the use of AI in their case.

Last but not least, COPRAC weighed on billing clients for AI-related work product, explaining that lawyers may charge for the time spent creating, refining, and reviewing generative AI outputs. Notably, the committee opined that charging for the time saved by using generative AI is impermissible. Finally, it determined that fee agreements “should explain the basis for all fees and costs, including those associated with the use of generative AI.”

With the issuance of this widely-anticipated guidance, nothing is holding you back from diving into the generative AI waters. With the recent release of legal generative AI products from LexisNexis and Thomson Reuters, and with many other legal AI products in the works, there’s no better time than now to take advantage of all that this technology offers. Rest assured, if you aren’t using it and reaping the time-saving benefits and efficiencies, your competitors undoubtedly will be.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software, an AffiniPay company. She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.