Bench & Bar January/February 2025

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 nec essary for the client to intelligently participate in the decision making process.

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 avail able and justified, which would result in a lower fee, may not be ethically reasonable.

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. But the Opinion realizes 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 got to tell your client if you plan to use any system for which it's contemplated that confidential material will be disclosed. 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 jurisdictions, the con cept 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 representa tion, 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 repre sentation. 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 are being used. And how they work. They need to understand the risks and how to avoid dis closing 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.

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