Several state bar associations and courts have leaped into the tar pit of issues that Gen AI seems to have raised. Many of these, at least early on, were little more than knee-jerk reactions. Most were brought about by a lack of understanding of the tools available and what they could do.
Recently, Kentucky’s Bar Association made a more studied and nuanced examination of the issues. The result was Ethical Opinion E-457 on: “The Ethical Use of Artificial Intelligence in the Practice of Law.” (By way of disclosure, I am a member of the KBA’s Artificial Task Force which is referenced in the Opinion. The opinions expressed here are my views and not necessarily those of the Task Force or other members. It should also be noted that the Opinion was published to the entire KBA membership in the May/June edition of the Bench & Bar Magazine. There is a 30 day period for comment before the Opinion becomes final.)
The short answers provided in the Opinion:
- · Lawyers have a duty to keep abreast of the use of AI in law;
- · There is no duty to disclose to the client the “rote” use of AI generated research subject to some important exceptions;
- · If AI can reduce the time spent on a client matter, the lawyer may need to reduce their fees;
- · A lawyer can charge a client for the expense of using AI only if the client agrees in writing; and
- · Attorneys have a continuing duty to safeguard client information if they use AI and comply with all applicable court rules.
Fairly logical and reasoned answers. But the Opinion goes further and provides some important insights into the ethical use of Gen AI in the legal profession:
- · A lawyer’s ethical duties concerning technology is mandatory, not discretionary;
- · Lawyers can’t ethically ignore the potential of AI in their practice;
- · Gen AI has a potential impact of on the reasonableness of fees;
- · Lawyers must understand the terms and conditions of any third party Gen AI systems and how those systems work;
- · Where client consent to the use of Gen AI is required, lawyers must discuss the risks and benefits of Gen AI with their clients;
- · Law firms need to create informed policies and procedures about the use of Gen AI to those whom they supervise.
In short, it contemplates Kentucky lawyers cannot run from or ignore AI.
Competence
Kentucky has adopted the ABA Model Rule’s Comment 8; in Kentucky, that Comment is numbered six. Like Comment 8, Comment 6 says, “A lawyer should keep abreast of changes in the law and practice, including the benefits and risks associated with relevant technology.”
It’s not a should; it’s a must.
From time to time, commentators have focused on the word should and suggested the duty is not mandatory. To the extent there was ever in controversary, E-457 puts it to rest. In Kentucky, “attorneys have a continuing ethical responsibility to maintain competence in their law practice, and reliance upon technology to do so is just another aspect of the competency requirement.” Period.
It’s not a should; it’s a must.
With respect to AI, the Opinion makes it clear. “Lawyers need to be aware that not using an available AI tool may constitute a failure to meet the lawyer’s duty of attaining and maintaining competence under Rule 1.1.”
That’s a strong endorsement and recognition of the need for lawyers and legal professionals to use technology. Ignorance is not an excuse.
Client Disclosure
The Opinion also contains some interesting observations about the need (or lack of need) to disclose the use of AI research tools to clients. A lawyer need not disclose the “rote” use of AI generated legal research. Rote use is that use that’s not necessary for the client to intelligently participate in the decision making process.
But if the client is being charged for the cost of the research, if court rules require disclosure, or, importantly, if a third party service is being used to provide the research, and confidential information is being revealed, then informed disclosure is required. The Opinion’s view of the use of third party services is important. Lawyers and law firms are being inundated with vendor pitches for AI assisted legal research tools, among others. Most of these vendors trumpet that their service will protect the confidentiality of any information placed in it. This protection, they say, allows the greater and more effective use of their Gen AI system (and justifies its often significant cost).
It does not matter what representations about confidentiality the vendor makes.
But the Opinion realized that using a third-party service impacts the “means” by which a representation is being accomplished and needs to be disclosed. More importantly, “if any outside AI service will be receiving information protected by the lawyer’s duty of confidentiality…then obtaining client consent is required.” This means you gotta tell your client if you plan to use any system for which it’s contemplated that confidential material will be disclosed to take full advantage of what the vendor is offering. It does not matter what representations about confidentiality the vendor makes.
If client consent is required, it has to be informed. So, the lawyer needs to discuss the proposed use, what will be used and how, and the risks and benefits.
Confidential Information
In Kentucky as in most jurisdication, the concept of confidential information is broader than many lawyers sometimes think. It’s not just those things communicated in confidence. It’s all information relating to the representation, whatever the source.
This means, for example, that an attorney must take care that any Gen AI inquiry does not identify the client or the nature of the representation. An attorney can use a hypo prompt only if there is no reasonable likelihood that anyone could identify the client or the matter.
The confidentiality requirements reinforce, according to the Opinion, the need for the attorney to understand how Gen AI products work and are being used
The confidentiality requirements reinforce, according to the Opinion, the need for the attorney to understand how Gen AI products work and are being used. And how they work. They need to understand the risks and how to avoid disclosing any confidential material unless the client consents. They need to review and understand the terms and conditions of any AI product offered by a vendor. They need to understand how inputted information might be shared. And whether the information will be used to enhance the capabilities of the tools.
Finally, the Opinion reinforces the cybersecurity requirements that lawyers must meet to satisfy their confidentiality duties, especially when it comes to Gen AI.
Billing
The Opinion strongly cautions lawyers not to charge clients for the cost of the system (without consent). Or bill for the time that was saved because an AI tool did the work. (The fact that these obvious cautions still must be spelled out is depressing).
The Opinion, again, goes a little further. It notes that all bills are subject to the reasonableness standards contained in the ethical rules. (A lawyer shall not charge an unreasonable fee) Thus, “a reduced fee may be appropriate when a lawyer obtains an expeditious on-point response to the client matter” by using AI. That’s a pretty strong suggestion that not using an AI tool when available and justified, which would result in a lower fee, may not be reasonable.
The Duty to Supervise
A lawyer has a duty to use reasonable efforts to make sure all who work with them comply with the rules. Thus, the Opinion recommends that law firms have policies and procedures to reduce potential disclosure of information using AI. The firm also has a duty to explain permissible uses and the known risks of Gen AI to those in the firm.
The Bottom Line
At first blush, E-457 provides standard and logical answers to typical Gen AI questions. But the Opinion is much more nuanced. It confirms that ethical duties concerning technology are a requirement. It suggests that, given the power of AI and Gen AI, lawyers can’t ethically ignore these tools.
The Opinion writers (who I know, by the way) took their responsibilities seriously. They produced a balanced, and well-reasoned opinion that goes beyond the surface and is a roadmap for the future.
Photo Attribution: Photo by Alexander Schimmeck on Unsplash