Here is my recent Daily Record column. My past Daily Record articles can be accessed here.
****
Amid a Flurry of AI Ethics Opinions, New Mexico Weighs In
Did you know that in less than two years, more than ten U.S. jurisdictions have issued guidance on generative artificial intelligence (AI)? For the past two decades, I’ve written about legal technology. My goal has always been to help legal professionals navigate the twists and turns of 21st-century innovations. From blogging and social media to cloud and mobile computing, I’ve encouraged members of my profession to actively learn about and implement technology into their practices.
Initially, my efforts felt like swimming upstream. Very few colleagues were receptive, and only the most tech-savvy showed interest in new tools and platforms. Adoption rates were slow, and my attempts to educate were often met with indifference.
Then, in early 2020, the pandemic struck, forcing lawyers to work remotely, conduct meetings online, and rely heavily on cloud-based tools. Attitudes shifted almost overnight, leading to a dramatic spike in technology adoption.
In many ways, the pandemic had the effect of priming legal professionals to be open to new tools and ways of working. This change of heart could not have come at a better time, and when generative artificial intelligence (AI) was unleashed, attorneys were immediately receptive and curious about its potential to streamline their workflows and increase law firm profitability.
When GPT 3.0 was released in November 2022, it amounted to a technological tidal wave whose impact on the practice of law continues to be felt today. The amount of ethics guidance handed down over the past two years focused on a single technology is unprecedented. This rapid response reflects both heightened concerns about potential risks and the acknowledgment of the potentially significant impact that AI could have on the practice of law. By my count, at least eleven jurisdictions have issued guidance or opinions on the ethics of using AI in law firms: California, Florida, New Jersey, Michigan, New York, Pennsylvania, Kentucky, the American Bar Association, Virginia, and D.C.
Most recently, New Mexico joined their ranks, issuing Formal Ethics Advisory Formal Opinion 2024-005 (Online: https://www.sbnm.org/Portals/NMBAR/GenAI%20Formal%20Opinion%20-%20Sept_2024_FINAL.pdf). At issue was whether lawyers may use generative AI in the practice of law. The short answer? Yes.
The State Bar of Mexico Ethics Advisory Committee determined that generally speaking, “the responsible use of Generative AI is consistent with lawyers’ (ethical) duties.” According to the committee, generative AI offers many potential benefits for lawyers and their clients, increasing efficiency and reducing costs for clients.
The Committee offered a number of examples of use cases, which include the initial drafting of legal documents and routine correspondence, assisting with drafting complex contracts or cross-examining witnesses, and streamlining discovery.
Importantly, the Committee clarified that lawyers are not required to use this technology, but “those lawyers who choose to do so…must do so responsibly, recognizing that the use of Generative AI does not change their fundamental duties under the Rules of Professional Conduct.”
Interestingly, the Committee offered a unique take on the risk of law firm data being used to train AI models. According to the Committee, conflict of interest issues could be triggered when using generative AI since “there is a risk that future outputs may use information relating to the prior representation or concurrent representation by another lawyer in the same firm in a way that disadvantages the prior/other client.” The Committee cautioned that if lawyers are unable to verify a lack of a conflict, they should avoid inputting confidential client data into a generative AI tool unless they’ve confirmed that the tool possesses safeguards that “protect prior client information and…screen potential conflicts.”
The Committee also addressed many other ethical issues that are implicated when lawyers use generative AI, including confidentiality, candor toward the tribunal, AI costs and billing, and supervisory issues. Make sure to read the full opinion for their in-depth analysis of these topics, especially if you happen to practice law in New Mexico.
No matter where you practice, one thing is clear: keeping up with the pace of change is essential. Given generative AI’s rapid advancement, it is more important than ever to stay informed, uphold ethical standards, and take full advantage of AI’s benefits. By doing so, you’ll be well-positioned to thrive, ultimately providing better client service and staying ahead of the curve in an increasingly competitive legal marketplace.
Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at MyCase, CASEpeer, Docketwise, and LawPay, practice management and payment processing tools for lawyers (AffiniPay companies). 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.