Bench & Bar January/February 2025

LAW PRACATICE MANAGEMENT

THE ETHICAL 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 is balanced, and well-reasoned that goes beyond the surface and is a roadmap for the future.

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 pro

THE KBA SURVEY Comparing the Opinion’s conclusions with a recent survey of Kentucky lawyers conducted by the KBA yields some interesting results. The Survey was conducted in July by members of the Kentucky Bar. It was sent to some 18,870 members and

cedures 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 supervisory duties are not to be taken lightly by the way. More senior lawyers cant just hide their heads in the sand when it comes to Gen AI by other lawyers and legal professionals in their firms. Senior lawyers need to recognize that GenAI tools will be used by its lawyers, particularly younger ones and those with an interest. Everyone needs to understand the risks and benefits of the technology and how to ensure best practices. This is particularly true given that as consumers, many lawyers are using Gen AI for personal activities. They will expect to be able to use it at work but have to be made to understand the risks.

2,480 members responded which is about 13%. THE KEY TAKEAWAYS FROM THE SURVEY:

• 70% of those responding believe Kentucky lawyers should be required to learn about AI and its risks and benefits. This is consistent with the requirements of E-457 and indicates a remarkable level of concern, particularly given the next two findings. • 72% of the respondents say they have not used Gen AI in their practice, and • 80% says their clients haven’t asked about it.

BOTTOM LINE: While Kentucky lawyers aren’t yet using Gen AI, they seem to see widespread use coming and they want to be ready.

One final noteworthy finding: the respondents seemed about evenly split on whether using Gen AI might violate their con fidentiality obligations, which again suggests that more training needs to be offered for a better understanding. Of course, E-457 addresses this issue as well.

WHERE DO WE GO FROM HERE?

More training and information needs to be provided to Kentucky lawyers: they want it and need it. Fortunately, the KBA has in place an AI Committee chaired by former Chief Justice John Minton that is taking responsibility for the offering of more and better training programs. The committee has already offered programs at the KBA convention, the Kentucky Law Update and through various webinars. More to come.

ABOUT THE AUTHOR STEPHEN EMBRY is a frequent speaker, blogger and writer. He is publisher of TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law and the practice of law. He is also co-author of a book entitled, “Mass Tort Claims Resolution Facilities,” and the 2017 and 2016 editions of the American Bar Association’s “TechReports.” Formerly a member of Frost Brown Todd LLC and the firm's class action, privacy and mass tort groups, he is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems. He now practices with his own firm, embryLaw LLC, and serves as co-chair of the Kentucky Bar Association’s Law Practice Committee.

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