Bench & Bar May/June 2026

FEATURE: ARTIFICIAL INTELLIGENCE

yer in performing or supervising the work, including the use of arti ficial intelligence or other technol ogy-assisted tools; 3. The novelty and difficulty of the questions involved, and the law yer’s skill in integrating, supervis ing, and evaluating technology to perform legal services properly; 4. The results obtained , the client’s objectives achieved, and the de gree to which technology contrib uted to an efficient and competent result; 5. The customary fee or value charged for similar legal services in the locality, taking into account technology-assisted practices; 6. The likelihood that the represen tation will preclude other em ployment by the lawyer; 7. The experience, reputation, and ability of the lawyer or lawyers performing and supervising the services; and 8. The extent of any fixed, contin gent, flat, capped, or hybrid fee arrangements and their relation to the value provided to the client. (B) COMMUNICATION OF FEE AND TECHNOLOGY USE The scope of the representation, the basis or rate of the fee, and any expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regu larly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. When advanced technologies are utilized the lawyer shall ensure that all such use complies with confidentiality, data protection, and professional responsibil ity standards, and shall obtain the client’s informed consent if the client will be billed for advanced technology-related costs, and if client data will be entered into or pro cessed by any external advanced technology platform.

ABOUT THE AUTHOR SHELDON G. GILMAN recently retired from the active prac tice of law but remains involved in various law related matters. Gilman received his undergraduate degree from Ohio University and his law degree from Case Western Reserve University. After graduation from law school Gilman served four years as a member of the U.S. Army’s Judge Advocate General’s Corps with duty assign ments at The Office of the Judge Advocate General and The Office of the Secretary of Defense. With regards to lawyer professional responsibility matters, Gilman continues to serve as a member of the Ethics Committee and has been a member of the Ethics Hotline for 30 years and has written more than 800 Hotline Informal Opinions and answered more than 500 telephone inquiries. Gilman served as a member of KBA Ethics 2000 Committee which recommended the current revised edition of our Rules in 2009. ENDNOTES 1 The author is solely responsible for this article and it is intended to start a debate about the validity of Rule 1.5 in an environment when a lawyer utilizes an AI tool to produce an outstanding work in an age of ex pedited AI services. My opinion does not reflect the opinion of the KBA, nor the Ethics Committee, and, of course, our Supreme Court. Yes – I received help from my collegial collaborators, ChatGPT, Perplexity, Copilot and Gemini 3; hence, this paper is truly a joint product of the modern age. However, if there is a problem with any of this blame me—AI does not accept responsibility for whatever it does but this may be changing based on laws introduced by many state legislatures. 2 Those who think about such things (including GAI) advise that the major technological leaps in human history, in order of transformative impact, are (1) Mastery of Fire; (2) Language; (3) Agriculture; (4) the Wheel; (5) Writing; (6) the Printing Press; (7) Electricity; (8) the Computer; (9) the Internet; and (10) the topic of this article—Generative AI. 3 Gemini 3 advises: As of early 2026, the number of lawyers being disciplined or sanctioned for submitting ‘hallucinated’ AI-generated information has grown significantly since the first high-profile incidents in 2023. While there is no single, real-time national registry that tracks every minor warning or private ad monishment, data from legal analysts and tracking databases indicates the following: Identified Cases: As of late 2025/early 2026, tracking databases (such as those maintained by research ers like Damien Charlotin) have identified over 239 instances in the United States where AI-generated hallucinations were submitted in court filings. Lawyers vs. Pro Se: Out of these instances, approximately 128 lawyers and two judges have been spe cifically linked to such filings, while the remainder primarily involved pro se (unrepresented) litigants. Trend: The frequency of these incidents ‘exploded’ in 2025. One analysis noted a jump from 31 in stances in the first quarter of 2025 to 167 in the third quarter alone. 4 For example, in Meyers v. Chapman Printing Co. 840 S.W.2d 814 (Ky. 1992), the Kentucky Supreme Court heavily relied on the Lodestar Method (Reasonable Hours × Reasonable Rate) to determine the reason ableness of a lawyer’s fee. This case cements the judicial mindset that “Time = Value.” Hence, while courts suggest that the “amount involved and results obtained” are significant factors, the courts rarely override the starting point of “hours worked. For a proposal of a new Rule 1.5, see proposed Shelly's Rule discussed infra . 5 [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. [Emphasis added.] 6 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 512, at 12 (2024). 7 The problem is exacerbated because a lawyer who knowingly inflates time and mails or emails the invoice may be committing an act of federal mail fraud under 18 U.S.C. § 1341 or § 1343). In addition, the lawyer may have criminal exposure under Kentucky law, Theft by Deception (KRS 514.040). 8 917 S.W.2d 568 (Ky. 1996). 9 The Court’s decision and later references to “set fee” are today commonly referred to as a “flat fee” arrange ments. 10 In other relevant ethics opinions the KBA explained the insurer—lawyer relationship. Specifically, E-405 addressed the lawyer’s duty of confidentiality of the client’s information, which may only be shared with the insurer if it relates to the defense of the claim, and the disclosure is consistent with the lawyer’s duty to the insured. E-414 addresses an insurer’s litigation management guidelines which may include: limits on re search hours, staffing restrictions, requirements for pre-approval of motions, and restrictions on discovery expenses. 11 See KBA E-457 (March 15, 2024) advising there is no ethical duty to disclose the rote use of AI “unless the work is being outsourced to a third party; the client is being charged for the cost of AI; and/or the disclosure of AI generated research is required by Court Rules.” 12 See discussion of Meyers v. Chapman Printing Co. supra at n. 4. The adoption of Shelly’s Rule may require the Supreme Court of Kentucky to explicitly overturn the “Lodestar” presumption for non-statutory fee disputes, moving toward a “Value of Services” standard that will undoubtedly be harder to adjudicate ob jectively but I have confidence that our Court is up to the challenge.

24 may/june 2026