CBA Record May-June 2023

and gathering inputs from users, which it uses to develop and fine-tune later outputs. In other words, ChatGPT is explicitly designed to and will col lect the information you put into the system to develop answers that it pro vides later to other users in response to their inquiries. • Rule 1.1 requires that we provide com petent representation to our clients. While ChatGPT is many things, it is still in a developmental stage where it can provide confident and complex – but totally incorrect – answers. If you begin relying on ChatGPT to research or draft portions of your legal docu ments or correspondence, it is critical that you double check the material that ChatGPT provides. Regardless of how lawyers harness and use tech nology, they still have an obligation to provide competent representation. • Remember that Rule 1.1 also includes Comment [8], which requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant tech nology.” While it is certainly too early to say that we may have an ethical obligation to learn how to use chatbot programs, it is certainly a possibility that someday it will not be reason able under the Rules for us to charge clients hourly rates to do something that machines can competently do much faster (although I suspect we are a number of years away from such a determination). Lawyers should be mindful of a number of other Rules that could be implicated by this kind of technology. Here are just a few that come to mind: • Do we have to communicate the use of ChatGPT to clients under Rule 1.4? • How do we charge clients reasonably for these services in a way that com plies with Rule 1.5? • How do we make sure the lawyers and legal professionals we supervise are not using artificial intelligence in a way that is inconsistent with ethical obligations? • If we do not tell our clients that we Continued

PRACTICAL ETHICS BY TRISHA RICH The Only Constant is Change: A Look at ChatGPT

I f you practice law long enough, you will begin to see a repeating cycle of our same laws and regulations applied over and over to new technologies. By now, everyone has heard of ChatGPT. It is worth thinking about how our Rules of Professional Conduct govern this new technology. First, what is ChatGPT? ChatGPT is one of the newest and hottest artificial intelligence technologies. It is a chatbot, which is basically a computer program that processes and simulates human conversation, which can be written or spoken (the spoken part is not particu larly new – you have seen this with your Siri- or Alexa-enabled devices). ChatGPT specifically is a chatbot developed by a company called OpenAI (owned in part by news-magnate Elon Musk). ChatGPT was launched in November 2022 and had over a million users within five days of launch. A few months later, the program boasted more than 100 million users. ChatGPT generates responses by attempting to understand the intent and context that underlie the questions it receives. While you might use Google to type in “What is the temperature in Chi cago today?”, ChatGPT handles more complex inquiries such as “How is climate change affecting average temperatures in Chicago?” In the first example, Google will tell you the temperature in Chicago.

ChatGPT, on the other hand, can gener ate an essay on Chicago’s changing weather patterns as related to climate change. People can use ChatGPT for a vari ety of things, including drafting reports, blogs, emails, and, importantly for our purposes, drafting legal documents and correspondence. For a particularly inter esting example of how ChatGPT can be used in the legal field, check out Andrew Perlman’s The Implications of ChatGPT for Legal Services and Society, published in the March 2023 edition of Harvard Law School’s Center on the Legal Profession’s magazine, The Practice. In addition to providing detailed substantive examples of how ChatGPT could dramatically change the way we practice law, the arti cle itself was written primarily by – you guessed it – ChatGPT itself. However, ChatGPT should be used only within the bounds of our ethical and fiduciary obligations to our clients. Before turning your entire law practice over to our robot overlords, consider the following ethical issues: • Rule 1.6 provides that (with some exceptions) we must keep information “related to” a client’s representation confidential. Our obligations under Rule 1.6 include protecting confiden tial information from unauthorized access or unintended disclosures. Con versely, ChatGPT works by collecting

Trisha Rich is a litigator and legal ethicist at Holland & Knight and the President of the Association of Professional Responsibility Lawyers, the national bar association for legal ethicists. You can reach her at trisha.rich@hklaw.com, on LinkedIn at linkedin.com/ in/trisharich, or on Twitter @_TrishRich

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