ABA Issues First Ethics Opinion on Lawyers Using Generative AI

On July 29, 2024, the American Bar Association (ABA) issued its first formal opinion on lawyers using generative AI in the legal profession through Formal Opinion 512. According to Sunshine R. Fellows, partner at Freeman, Mathis & Gary, the opinion emphasizes that while GenAI can enhance efficiency, attorneys must be mindful of how its use affects their ethical responsibilities, as outlined by the ABA Model Rules of Professional Conduct.

Fellows highlights these key ethical obligations discussed in the opinion:

• Competence: Attorneys must understand GenAI tools’ capabilities and limitations, ensuring they do not rely on outputs without independent verification.
• Confidentiality: Lawyers are required to protect client information by considering the risks of disclosure or unauthorized access when using GAI tools, obtaining client consent when necessary, and understanding the terms of GenAI tools before use.
• Communication: Lawyers may need to disclose their use of GenAI to clients, especially if it impacts fees, engagement agreements, or the client’s understanding of the legal work.
• Candor Toward the Tribunal: When GenAI is used in litigation, attorneys must ensure that AI-generated outputs are not misleading and comply with any local rules regarding disclosure of GenAI use.
• Supervisory Responsibilities: Managerial lawyers must establish policies for the ethical use of GenAI, including training for attorneys and non-attorney staff.
• Fees: Lawyers must ensure that costs related to GenAI use are reasonable, reflecting actual time spent and appropriate billing practices, such as charging for standalone expenses but not for general overhead.

Opinion 512 underscores that compliance with these guidelines is essential for lawyers using generative AI in ethical legal practice.