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.) |