CBA Record March-April 2024

Lawyer Advertising All lawyer advertising is prohibited from being false or misleading. To the extent that a lawyer’s use of generative AI tech nologies includes the use of a chatbot on the lawyer’s website, the lawyer is respon sible for the information provided by the chatbot. The opinion notes that, under Florida’s Rules, “a lawyer must inform prospective clients that they are commu nicating with an AI program and not with a lawyer or law firm employee.” The opin ion notes that the lawyer may want to consider screening questions to confirm that the prospective client is not already represented by other counsel. It also notes that while lawyers can advertise their use of generative AI, they may not claim that their generative AI programs are supe rior to those of other lawyers unless such claims are objectively verifiable. Finally, the opinion includes two addi tional important points. First, because generative AI is in its infancy, especially in the legal field, the opinion should not be viewed as an exhaustive list of the ethi cal issues that may be implicated. Second, to comply with these ethical obligations, lawyers must be familiar with the particu lar program’s policies, including its poli cies on data retention, use of data, and self-learning, to confirm that those poli cies are consistent with the lawyer’s own obligations.

PRACTICAL ETHICS BY TRISHA RICH Florida Bar Issues Nation’s First Ethics Opinion on Generative AI O n January 19, 2024, the Florida Bar’s Board of Governors voted unanimously to adopt Ethics

Supervisory Obligations Under Rule 5.3, lawyers must exercise proper supervision and authority over nonlawyer assistants and assistance to ensure that they meet all ethical obliga tions. This requires lawyers to confirm that work product produced using gen erative AI is both accurate and sufficient. As the opinion notes, a lawyer’s failure to do so can lead to violations of other ethi cal duties, such as competence, avoiding frivolous claims, candor to the tribunal, and truthfulness to others. The duty to supervise has always applied to a lawyer’s oversight of both people and programs within their law firm, along with those that are not. Gen erative AI programs are no exception; attorneys must ensure that when they are using third-party generative AI programs, those programs align with the lawyer’s own ethical obligations. Legal Fees & Costs Rule 1.5 prohibits attorneys from charg ing illegal or clearly excessive fees to their clients and requires lawyers to communi cate the basis for their fees and costs to their clients. Lawyers may ethically charge clients only for costs and fees actually incurred – it is dishonest for lawyers to duplicate charges that are accounted for in an attorney’s overhead costs. Using gen erative AI can save a significant amount of time (and thus fees), but attorneys must not falsely inflate their billings – the bene fit of the increased efficiency will typically be the client’s. Alternative billing arrange ments, when agreed to by the client and when not excessive under Rule 1.5, can work to spread the benefits of these effi ciencies to both lawyers and clients.

Advisory Opinion 24-1, the nation’s first ethics opinion on the ethical and professional responsibility issues related to the use of generative artificial intelli gence in the legal profession. Generative AI programs are “deep-learning models” that collect data from the internet, users, and other sources to provide statistically probable outcomes; ChatGPT, which launched in November 2022, is the most well-known. While the opinion is advisory only, it offers helpful guidance on the ethics issues related to these tech nologies. We can expect other jurisdic tions to adopt similar ethical opinions in short order. Advisory Opinion 24-1 identifies multiple areas of ethical con cern for attorneys using generative AI technologies. Confidentiality Under Rule 1.6, lawyers must protect their clients’ confidential information, which includes all information related to the representation. Because genera tive AI programs typically work by col lecting information from users, storing it, and using it later, lawyers must exercise caution by not providing generative AI programs confidential client information, absent client consent. Note, however, that the opinion differentiates third-party generative AI programs from closed, in-house programs that some lawyers will have access to. Informed consent is required, according to the opinion, only when there is a confidential disclosure to a third party (such as an outside genera tive AI program).

Trisha Rich (trisha.rich@ hklaw.com) is a commercial litigator and legal ethicist at Holland & Knight, CBA Secretary, and Immedi ate Past President of the Association of Professional Responsibility Lawyers, the national bar association for legal ethicists

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