| LEO Num | Topics | Summary | Date |
ABA-511
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| (Absent a client’s informed consent, a lawyer hoping to “obtain assistance in a representation from other lawyers on a listserv discussion group, or post a comment,” may not provide any information “relating to a representation” – even in hypothetical or abstract form – if there is a reasonable likelihood that the lawyer’s posts would allow a reader then or later to infer the identity of the lawyer’s client or the particular situation involved.” Lawyers should remember that Rule 1.6’s breadth prohibits a lawyer from revealing “even publicly available information, such as transcripts or proceedings in which the lawyer represented a client” or even “the identity of a lawyer’s clients.” The breadth of this duty means that “lawyers are generally restricted from disclosing such information even if the information is anonymized, hypothetical, or in abstracted form if it is reasonably likely that someone learning the information might then or later ascertain the client’s identity or the situation involved.” Lawyers may be impliedly authorized to disclose such information within a law firm, but not outside the law firm. Earlier ABA LEO 411 (1998) involved disclosing anonymized information to “an attorney known to the consulting lawyer.” Such an implied authorization does not apply if a lawyer communicates “to a wider group of lawyers by posting an inquiry or comment on a listserv.” When dealing with such widespread communications, a lawyer “should err on the side of caution and avoid specific hypotheticals, refrain from posting, or obtain the client’s informed consent if there is any reasonable concern.” | 5/8/2024 |
ABA-512
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| (Lawyers relying on generative artificial intelligence (“GAI”) tools must consider several ethics issues: (1) COMPETENCE: lawyers relying on such tools “must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use” (including both its benefits and risks, including the possibility of what are called “hallucinations” when the AI generates faulty information); lawyers’ competence duty means that “lawyers may not abdicate their responsibilities by relying solely on a GAI tool to perform tasks that call for the exercise of professional judgment,” but must instead apply the “appropriate amount of independent verification or review” of what is generated by the tool; in some situations lawyers may “eventually have to use” such tools to act competently in representing a client; (2) CONFIDENTIALITY: lawyers must obtain a client’s “informed consent . . . prior to inputting information relating to the representation into such a GAI tool,” although using AI tool for “idea generation” may not require inputting protected client information; lawyers may not just add “boiler-plate provisions to engagement letters purporting to authorize the lawyer to use GAI;” lawyers must understand any AI tool’s “Terms of Use;” (3) COMMUNICATION: lawyers must communicate with their clients if they intend to use generative AI, and must also advise the client when such generative AI “will influence a significant decision in the representation” or if the lawyer used generative AI in undertaking a project for the client;” (4) DEALING WITH TRIBUNALS: lawyers must comply with the pertinent tribunal’s requirements when using generative AI; (5) SUPERVISORY RESPONSIBILITIES: managerial and direct supervisors in a law firm or law department must train their colleagues on the possible use of generative AI and the risks; lawyers must also supervise any generative AI supplier, as with any other outsourced work; (6) FEES: lawyers billing by the hour must only bill for the time they use, and may not add to that time what they consider an effort saved by using generative AI; lawyers charging a flat fee may not be able to do so if generative AI saved a material amount of the time they would otherwise have spent; as in other situations, lawyers may charge generative AI expenses, but may not add a surcharge to the actual cost unless there is some overhead that may be appropriately charged; absent an agreement with the client; lawyers must also be careful when charging a client for use of a “proprietary, in-house GAI tool” – including limiting the charge to the actual expenses and pertinent overhead; absent client consent; lawyers may not charge the client for time the lawyer spends learning about generative AI.) | 7/29/2024 |
ABA-513
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| (Recent changes to ABA Model Rule 1.16 make explicit what has always been an implicit “duty to inquire into and assess the facts and circumstances of a representation” (as previously described in ABA LEO 463 (5/23/13) and ABA LEO 491 (14/29/20)). ABA Model Rule 1.16(a)’s now-explicit duty applies “more broadly” than just to the type of transactions that may involve a “lawyer facilitation of criminal transactions such as money laundering and terrorist financing”. The duty exists when any representation begins, and also “continues throughout the course of the representation.” As explained in the earlier ABA LEOs, the new ABA Model Rule 1.16(a) provision requires lawyers to “conduct an inquiry and assessment, appropriate to the circumstances, to avoid counseling or assisting in the client’s fraudulent or criminal conduct.” The assessment must take “[a] risk-based approach [which] incorporates the concepts of reasonableness and proportionality.” ABA Model Rule 1.16 cmt. [2] identifies “five non-exclusive factors” that lawyers might consider when undertaking the risk-based analysis. The ABA Model Rule 1.16 amendments “anticipated that only certain representations would necessitate only a significant inquiry, namely, those where there appeared to be a heightened risk of crime or fraud typically because of the nature of the representation or because of the appearance of ‘red flags’”. Lawyers must decline a representation if they have “actual knowledge” that their services will be improperly used. Otherwise, lawyers must “conduct a reasonable risk-based inquiry, not a perfunctory one and not one that involves a dragnet-style operation to undercover every fact about every client.” Thus, “lawyers must conduct a reasonable inquiry and assessment, proportionate to the risks presented by the facts and circumstances.” The assessment does not involve a “‘zero failure’ approach” – and “the lawyer’s judgment should be evaluated as the time it was made, not with the benefit of hindsight.” Lawyers should focus on representations that have heightened risk of misuse – such as those involving “purchasing and selling real estate,” representations where clients “use time pressure to rush a lawyer’s work, hoping to achieve their misconduct before the lawyer (or anyone else) has time to discover it,” and representations that involve “transferring large sums of cash” – especially funds “originating outside the United States” (because experience has shown that “[a] higher risk of participating in money laundering or terrorist financing exists when the lawyer ‘touches the money’”. In connection with conducting such a necessary inquiry, “[t]he lawyer need not resolve all doubts” – “if some doubt remains even after the lawyer has conducted a reasonable inquiry, the lawyer may proceed with the representation as long as the lawyer concludes that doing so is unlikely to involve assisting or furthering a crime or fraud.” | 8/23/2024 |