Bench & Bar January/February 2025

LAW PRACATICE MANAGEMENT KENTUCKY’S NUANCED Ethical Roadmap FOR USING G en AI AND TECHNOLOGY

LAWYERS

BY STEPHEN EMBRY

S everal 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 (KBA) made a more studied and nuanced exam ination of the issues. The result was Ethical Opinion E-457 entitled: "The Ethical Use of Artificial Intelligence in the Practice of Law."

COMPETENCE Kentucky has adopted the ABA Model Rule's Comment 8; in Kentucky, that Comment is numbered 6. 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.” From time to time, commentators have focused on the word “should” and sug gested the duty is not mandatory. To the extent there was ever a controversy in Kentucky, E-457 puts it to rest. Accord ing to the Opinion, Kentucky "attorneys have a continuing ethical responsibility to maintain competence in their law prac tice, and reliance upon technology to do so is just another aspect of the compe tency requirement." With respect to AI, the Opinion makes it clear that "Lawyers need to be aware that not using an available AI tool may con stitute a failure to meet the lawyer's duty of attaining and maintaining competence under Rule 1.1." That's a strong endorsement and recog nition of the need for lawyers and legal professionals to use technology. Igno rance is not an excuse.

THE SHORT ANSWERS 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's ethical duties concern ing 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 sys tems work;

• 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.

Importantly, the Opinion goes further and provides some important insights into the ethical use of Gen AI in the legal profession as a whole:

• Where client consent to the use of Gen AI is required, lawyers must dis cuss 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.

32 january/february 2025