In a move reflecting the changing landscape of legal practice, the Florida Bar has shed light on the ethical use of artificial intelligence (AI) by attorneys, echoing a similar initiative by the California Bar in November. However, this trend may not be confined to the coasts, as bar associations in six additional states, including New York, Texas, Illinois, New Jersey, Minnesota, and Kentucky, are actively scrutinizing the responsible implementation of emerging AI technologies within the legal sphere.
The anticipation builds as the New York State Bar Association gears up for a crucial vote on its forthcoming AI recommendations in April. The ripple effect of these discussions is evident, with the American Bar Association establishing an AI task force in August. This task force aims to comprehensively assess the impact of AI on legal practice, delving into the ethical dilemmas that this technology poses for the legal profession.
Notably, high-profile cases, including those involving Michael Cohen, President Donald Trump’s former legal aide, have brought attention to potential ethical lapses tied to the use of AI programs such as Open AI’s GPT-4 and Google’s Bard. The capacity of generative AI programs to “hallucinate” information, producing text that is convincingly inaccurate, has prompted federal judges to demand disclosure when attorneys employ AI in cases on their dockets.
Florida’s recent ethics advisory opinion emphasizes obtaining clients’ consent before divulging confidential information to third-party generative AI programs. This includes scenarios where AI, such as GPT-4, is employed to draft client briefs. However, the opinion does not mandate informed consent when AI is utilized without involving confidential information or when an attorney uses an in-house AI platform independent of third-party reliance.
These guidelines, issued through bar organizations’ advisory opinions in Florida and California, serve as a compass for attorneys navigating the evolving ethical landscape. Both states’ guidelines underscore the need for transparency and client disclosure when attorneys leverage generative AI. Notably, the guidelines discourage attorneys from billing clients hourly for time saved through AI use. Florida goes a step further, suggesting alternative fee arrangements, such as contingent fees or flat-billing rates, when AI enhances efficiency.
Moreover, restrictions are imposed on AI’s role in certain legal tasks, with Florida prohibiting its use in negotiations requiring a lawyer’s personal judgment and participation. Both sets of guidelines emphasize that attorneys must meticulously review AI-generated work products, akin to their scrutiny of nonlawyer assistants like paralegals, ensuring accuracy. California’s guidelines go an extra mile, urging attorneys to remain vigilant for potential biases within generative AI programs.
The evolving ethical guidelines reflect a concerted effort by legal authorities to strike a balance between leveraging the benefits of AI and upholding the core tenets of the legal profession. As more states engage in this discourse, the legal landscape adapts to the challenges and opportunities posed by the integration of artificial intelligence into legal practice.
