CBA Record September-October 2024

must bill for actual time spent, even when using generative AI. Meritorious Claims and Contentions and Candor to the Tribunal (Rules 3.1, 3.3, and 8.4(c)): The opinion underscores that lawyers must ensure that AI-gener ated content is accurate and truthful. This is particularly important when AI is used to draft documents submitted to a court or other parties. Lawyers must verify the accuracy of AI-generated content and avoid submitting false or misleading information, even if the error was made by the AI.

PRACTICAL ETHICS BY TRISHA RICH Navigating the Ethical Landscape of Generative AI: Insights from ABA Formal Ethics Opinion 512 T he American Bar Association added its voice to the growing body of guidance on the ethics issues sur

rounding the use of generative AI by legal communities when it published Formal Opinion 512, Generative AI Intelligence Tools, on July 29, 2024. The advent of generative AI, which can produce human like text, draft documents, and even suggest legal arguments, presents both opportunities and challenges for lawyers. Generative AI refers to AI systems that can generate content based on prompts, often producing text that closely resem bles what a human might write. In the legal field, such AI tools can assist with drafting briefs, contracts, and other legal documents, perform legal research, and even predict outcomes of cases. While these tools promise to increase efficiency and reduce costs, they also raise significant ethical concerns, particularly regarding accuracy, confidentiality, and the lawyer’s duty to provide competent representation. Key Considerations in ABA Formal Ethics Opinion 512 ABA Formal Ethics Opinion 512 focuses on several critical areas: Competence (Rule 1.1): The ABA emphasizes that lawyers must maintain a level of competence when using genera tive AI tools. This means understanding how these tools work, their limitations, and the potential risks associated with their use. Lawyers cannot delegate their professional responsibilities to AI and must ensure that any AI-generated work product meets the standards of competent legal practice.

Supervision (Rules 5.1 and 5.3): Law yers are required to supervise any non lawyers, including AI systems, that they use in their practice. ABA Opinion 512 makes it clear that lawyers cannot abdi cate their supervisory responsibilities to AI. They must oversee the work produced by AI and ensure that it aligns with ethical and professional standards. Practical Implications The guidance provided by ABA Formal Ethics Opinion 512 has several practical implications for lawyers who are consider ing or already using generative AI in their practice. 1. Diligence in Selecting and Using AI Tools Lawyers must exercise diligence when selecting AI tools, ensuring that they

Confidentiality (Rule 1.6): The opinion highlights the importance of protecting client confidentiality when using AI tools. Lawyers must ensure that any information inputted into AI systems is secure and that the use of such tools does not inad vertently disclose sensitive client infor mation. This is particularly crucial when using third-party AI providers, where data security may be a concern. Communication (Rule 1.4): Lawyers should consider whether and what they are required to disclose to clients about their use of generative AI. In some cases, disclosure may be mandatory. Fees (Rule 1.5): Rule 1.5 requires that a lawyer’s fees be reasonable and that law yers communicate to their clients the basis for fees and expenses. Opinion 512 clearly states that lawyers who charge hourly rates

40 September/October 2024