Bench & Bar May/June 2026

ethical concerns raised by AI use. SCR 3.130(1.6)(a) prohibits a lawyer from revealing information relating to the rep resentation of a client without informed consent, while SCR 3.130(1.6)(c) requires lawyers to make “reasonable efforts” to pre vent unauthorized disclosure or access. AI tools frequently require lawyers to input client facts, legal theories, or draft docu ments into third-party systems. If those systems retain, store, or train on user data, the lawyer may be exposing confidential information to unauthorized third parties. KBA E-457 emphasizes that lawyers must evaluate: • Whether the AI vendor stores or reuses submitted data; Using a publicly available AI platform with out understanding its data policies may constitute a failure to make “reasonable efforts” to protect confidentiality under SCR 3.130(1.6). The ethical risk increases where sensitive or privileged client information is involved. COMMUNICATION AND DISCLOSURE TO CLIENTS SCR 3.130(1.4) Kentucky Rule SCR 3.130(1.4) requires lawyers to keep clients reasonably informed and to explain matters sufficiently to allow clients to make informed decisions regard ing representation. KBA E-457 addresses whether lawyers must disclose their use of AI to clients. The opin ion concludes that routine AI use does not automatically require disclosure , provided that: • The lawyer remains responsible for the work product; • No confidential information is improperly disclosed; and • Whether information is en crypted or otherwise secured; and • Whether contractual protec tions exist to prevent disclosure or reuse.

E-457 interprets this language to mean that lawyers have an ethical duty to under stand the AI tools they use , including both their capabilities and their limitations. The opinion describes reliance upon technology as just another aspect of the competency requirement. Competence in the AI context therefore includes: • Understanding how AI systems generate outputs; • Recognizing the risk of halluci nations, fabricated citations, or flawed reasoning; • Knowing when AI is appropriate and when it is not; and • Ensuring that AI-generated con tent is independently reviewed and verified. A lawyer who relies blindly on AI output without verification risks violating SCR 3.130(1.1), particularly when erroneous information generated by an AI tool affects a client’s legal rights. Importantly, nothing in SCR 3.130(1.1) or Comment 6 man dates that a lawyer actually use AI in his or her practice. Rather, a lawyer must simply understand the “benefits and risks” of AI technology enough to make an informed decision about whether and how to utilize the technology in practice. A corollary rule to SCR 3.130(1.1) is SCR 3.130(1.3), Diligence , requiring a lawyer to “act with reasonable diligence in rep resenting a client.” Comment 1 expands this directive in saying that a “lawyer must also act with commitment and dedication to the interests of the client.” While SCR 3.130(1.3) isn’t specifically cited in E-457, it certainly seems logical that a lawyer is not behaving diligently, i.e., in the “interests of the client” if AI can be used to achieve efficiencies and superior results and is not being utilized. Similarly, a lawyer cannot be said to discharge their duty of diligence if he or she does not appropriately review and verify the output generated with AI technology. CONFIDENTIALITY AND DATA SECURITY SCR 3.130(1.6) Confidentiality is one of the most significant

However, disclosure may be ethically required under SCR 3.130(1.4) when: • AI use materially affects the rep resentation; • The lawyer intends to bill the cli ent for AI-related costs; or

• AI replaces work the client rea sonably expects the lawyer to perform personally.

In these situations, transparency ensures that the client can make informed decisions about representation.

FEES, BILLING, AND REASONABLENESS SCR 3.130(1.5)

The reasonableness of attorney fees is gov erned by SCR 3.130(1.5) . AI raises novel billing questions because it can drastically reduce the time required to perform certain legal tasks. KBA E-457 provides critical guidance: • Lawyers may not bill clients for time saved by AI as if the work were performed manually;

• Lawyers may not charge cli ents for the cost of learning or maintaining competence in AI , as competence is part of profes sional responsibility; and • Lawyers may charge for AI-re lated expenses only if the client agrees in advance, preferably in writing.

Charging excessive fees for AI-assisted work risks violating SCR 3.130(1.5)(a), which prohibits unreasonable fees, and SCR 3.130(8.4)(c), which prohibits dishonest conduct. SUPERVISION AND RESPONSIBILITY FOR AI OUTPUT SCR 3.130(5.1) AND SCR 3.130(5.3) Although AI is not a person, the super visory principles of SCR 3.130(5.1) (responsibilities of lawyers with managerial authority) and SCR 3.130(5.3) (responsibil ities regarding nonlawyer assistance) apply by analogy.

• The client is not misled about how services are being per formed.

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