The Oklahoma Bar Journal September 2024

E thics & P rofessional R esponsibility

A Cautionary Tale

ABA Formal Opinion 512

By Richard Stevens

L ATELY, THERE HAS BEEN A great deal of publicity, infor mation and misinformation about the use of generative artificial intelligence (GAI) by lawyers. While there is no one definition of artificial intelligence (AI), lawyers have used AI-based technologies in their practices for years. Lawyers use AI-assisted review in electronic discovery, contract analytics, basic research and other purposes. Recently released ABA Formal Opinion 512 discusses ethical con siderations in the use of GAI, which creates various types of new content in response to questions posed by a user. The opinion attempts to identify ethical issues with the use of GAI tools, which it describes as “a moving target – indeed, a rapidly moving target.” The opinion is segmented into broad categories of ethics issues within single rules and groups of related rules. COMPETENCE: RULE 1.1 Rule 1.1 requires that a lawyer “provide competent representation to a client. Competent representa tion requires the legal knowledge, skill, thoroughness and prepa ration reasonably necessary for the representation.” Comment 6 makes clear that a lawyer must also “maintain the requisite knowledge and skill ... including the benefits and risks associated with relevant technology.” To do

so, a lawyer “should either acquire a reasonable understanding of the benefits and risks of the GAI tools that they employ in their practices or draw on the expertise of others who can provide guidance about the relevant GAI tool’s capabilities and limitations.” Lawyers must also understand that GAI may produce inaccurate content. GAI tools create content taken from the internet or other proprietary sources. The GAI tool may produce inaccurate, unreli able, incomplete or biased results, depending on the quality of the source material the tool uses. The GAI tool may also lack the ability to understand the meaning of information that is used and may, as ABA 512 notes, also “combine otherwise accurate information in unexpected ways to yield false or inaccurate results.” ABA 512 also recognizes a fact that has been the subject of numer ous news reports recently. “Some GAI tools are also prone to ‘hal lucinations,’ providing ostensibly plausible responses that have no basis in fact or reality.” Uncritical reliance on such information may violate the duty to provide compe tent representation to a client under Rule 1.1.

CONFIDENTIALITY: RULE 1.6 Under Rule 1.6, a lawyer is required to keep confidential all information relating to the rep resentation of a client unless the client gives informed consent, dis closure is impliedly authorized to carry out the representation or dis closure is permitted by an excep tion. Self-learning GAI tools pose a risk that confidential information may be disclosed improperly. While a determination of the requirements of Rule 1.6 may be heavily fact-dependent, ABA 512 suggests that a lawyer consider the likelihood of disclosure or unauthorized access of confidential information along with the sen sitivity of that information before inputting information relating to a client into a GAI tool. If informed consent is required, the lawyer must disclose specific information about the risk, client information to be disclosed, how that information may be used against the client’s interests and a clear explanation of the benefits of using the GAI tool. about the extent to which com munication about the use of GAI may be necessary to comply with Rule 1.4. The opinion clarifies that the determination of whether and what to disclose will depend on the circumstances of each case. COMMUNICATION: RULE 1.4 ABA 512 provides guidance

82 | SEPTEMBER 2024

THE OKLAHOMA BAR JOURNAL