This
week,
I
have
been
experimenting
with
Deep
Research,
the
AI
agent
OpenAI
released
on
Sunday
that
it
says
is
capable
of
completing
multi-step
research
tasks
and
synthesizing
large
amounts
of
online
information.
Not
to
be
confused
with
the
controversial
Chinese
AI
product
DeepSeek),
Deep
Research
is
said
to
be
particularly
useful
for
people
in
fields
such
as
finance,
science
and
law.
Already
this
week,
I
published
two
of
these
experiments.
In
the
first,
I
used
it
to
analyze
the
legality
of
President
Trump’s
pause
of
federal
grants.
In
about
10
minutes,
it
produced
a
9,000
word
detailed
memorandum,
concluding
that
the
pause
“appears
to
rest
on
shaky
legal
ground.”
Next,
I
used
it
to
research
and
recommend
the
best
law
practice
management
suite
for
a
four-lawyer
firm.
It
produced
a
fairly
detailed
response,
including
two
charts
comparing
features,
pricing,
usability,
security,
support
and
user
satisfaction.
For
today’s
task,
I
asked
it
to
create
a
report
detailing
every
legal
ethics
opinion
pertaining
to
generative
AI.
Here
was
my
exact
prompt:
“Create
a
report
detailing
every
legal
ethics
opinion
from
every
national,
state,
local
and
specialty
bar
association
or
lawyer
licensing
body
pertaining
to
the
ethics
of
lawyers’
use
of
generative
artificial
intelligence.”
It
responded
to
my
prompt
with
several
questions
about
the
scope
of
the
research
I’d
requested,
such
as
whether
it
should
focus
only
on
formal
ethics
opinions
or
also
include
informal
guidance.
After
I
answered
its
questions,
it
produced
the
report
published
below.
After
it
produced
the
report,
I
asked
it
to
also
summarize
the
findings
in
a
chart,
which
is
what
you
see
immediately
below.
I
have
not
verified
that
this
is
a
complete
list.
If
anyone
knows
where
I
can
find
a
complete
list
to
compare
against,
please
let
me
know.
That
said,
I
was
again
impressed
by
its
ability
to
conduct
comprehensive
research
across
multiple
sources
and
generate
a
report.
The
entire
task
took
it
15
minutes.
Issuing
Body |
Opinion
Title/Number |
Date
Issued |
Key
Themes |
Disclosure
Required |
Billing
Guidance |
ABA |
Formal
Opinion
512 |
July
2024 |
Competence,
Confidentiality,
Supervision,
Candor,
Fees |
Case-dependent |
AI
efficiency
should
reduce
fees |
California |
Practical
Guidance |
November
2023 |
Confidentiality,
Competence,
AI
Disclosure,
Supervision |
Not
mandatory,
but
recommended |
Efficiency
gains
must
be
fair
to
clients |
Florida |
Advisory
Opinion
24-1 |
January
2024 |
Confidentiality,
Supervision,
Fees,
AI
Transparency |
Client
informed
consent
advised |
Must
not
charge
for
AI
time
savings |
New
York
State
Bar |
Task
Force
Report |
April
2024 |
Competence,
Bias,
AI
Oversight,
Client
Communication |
Recommended
in
certain
cases |
Clients
should
benefit
from
AI-driven
efficiency |
New
York
City
Bar |
Formal
Opinion
2024-5 |
August
2024 |
Confidentiality,
Competence,
Supervision,
AI
Disclosure |
Required
for
external
AI
use |
No
overcharging
for
AI
use |
New
Jersey
Supreme
Court |
Preliminary
Guidelines |
January
2024 |
Competence,
Candor,
Supervision,
AI
Verification |
Not
always,
but
recommended |
No
billing
for
time
not
actually
spent |
Pennsylvania
&
Philadelphia
Bars |
Joint
Opinion
2024-200 |
June
2024 |
Competence,
Candor,
AI
Hallucinations,
Billing
Ethics |
Yes,
in
some
AI
use
cases |
Cannot
bill
AI
time
as
manual
work |
Kentucky |
Ethics
Opinion
KBA
E-457 |
March
2024 |
Competence,
AI
Use
in
Billing,
Supervision,
Client
Consent |
Depends
on
AI’s
impact
on
case |
Cannot
bill
for
AI
learning
time |
North
Carolina |
Formal
Ethics
Opinion
2024-1 |
November
2024 |
Competence,
Supervision,
Confidentiality,
AI
Oversight |
Not
always,
but
must
protect
confidentiality |
AI-based
efficiency
should
lower
costs |
Texas |
Proposed
Opinion
2024-6 |
November
2024 |
Competence,
Confidentiality,
AI
Trustworthiness,
Supervision |
Not
explicitly
required |
Fair
pricing
required
for
AI
use |
Virginia |
AI
Guidance
Update |
August
2024 |
Confidentiality,
Billing,
Supervision,
AI
Court
Compliance |
Not
mandated
but
recommended |
AI
costs
must
align
with
ethical
billing |
D.C.
Bar |
Ethics
Opinion
388 |
September
2024 |
Competence,
AI
Verification,
Supervision,
Client
Files |
Required
in
specific
situations |
No
excess
fees
for
AI
use |
USPTO |
Practice
Guidance
(2023–2024) |
April
2024 |
Candor,
Confidentiality,
AI
Use
in
Legal
Submissions |
Court
compliance
required |
Legal
AI
use
cannot
inflate
costs |
National
Bar
Associations
American
Bar
Association
–
Formal
Opinion
512
(July
2024)
The
ABA
Standing
Committee
on
Ethics
and
Professional
Responsibility
issued
Formal
Opinion
512,
“Generative
Artificial
Intelligence
Tools,”
on
July
29,
2024.
americanbar.org
americanbar.org.
This
is
the
ABA’s
first
ethics
guidance
focused
on
generative
AI
use
by
lawyers.
It
instructs
attorneys
to
“fully
consider
their
applicable
ethical
obligations,
including
their
duties
to
provide
competent
legal
representation,
to
protect
client
information,
to
communicate
with
clients,
to
supervise
their
employees
and
agents,
to
advance
only
meritorious
claims
and
contentions,
to
ensure
candor
toward
the
tribunal,
and
to
charge
reasonable
fees.”
jenkinslaw.org
In
short,
existing
ABA
Model
Rules
apply
to
AI
just
as
they
do
to
any
technology.
Key
concerns
and
recommendations:
The
opinion
emphasizes
that
lawyers
must
maintain
technological
competence
–
understanding
the
benefits
and
risks
of
AI
tools
they
use
jenkinslaw.org.
It
notes
the
duty
of
confidentiality
(Model
Rule
1.6)
requires
caution
when
inputting
client
data
into
AI
tools;
lawyers
should
ensure
no
confidential
information
is
revealed
without
informed
client
consent
jenkinslaw.org.
Lawyers
should
also
evaluate
whether
to
inform
or
obtain
consent
from
clients
about
AI
use,
especially
if
using
it
in
ways
that
affect
the
representation jenkinslaw.org.
AI
outputs
must
be
independently
verified
for
accuracy
to
fulfill
duties
of
candor
and
avoid
filing
false
or
frivolous
material
(Rules
3.3,
3.1)
jenkinslaw.org.
The
ABA
highlights
that
“hallucinations”
(convincing
but
false
outputs)
are
a
major
pitfall
americanbar.org.
Supervision
duties
(Rules
5.1
and
5.3)
mean
lawyers
must
oversee
both
subordinate
lawyers
and
nonlawyers
and
the
AI
tools
they
use
jenkinslaw.org.
The
opinion
also
warns
that
fees
must
be
reasonable
–
if
AI
improves
efficiency,
lawyers
should
not
overbill
for
time
not
actually
spent kaiserlaw.com.
Overall,
Formal
Op.
512
provides
a
comprehensive
framework
mapping
generative
AI
use
to
existing
ethics
rules
americanbar.org
americanbar.org.
(See
ABA
Formal
Op.
512
jenkinslaw.org
for
full
text.)
State
Bar
Associations
and
Regulatory
Bodies
California
–
“Practical
Guidance”
by
COPRAC
(November
2023)
The
State
Bar
of
California
took
early
action
by
issuing
“Practical
Guidance
for
the
Use
of
Generative
AI
in
the
Practice
of
Law,”
approved
by
the
Bar’s
Board
of
Trustees
on
Nov.
16,
2023
calbar.ca.gov
jdsupra.com.
Rather
than
a
formal
opinion,
it
is
a
guidance
document
(in
chart
format)
developed
by
the
Committee
on
Professional
Responsibility
and
Conduct
(COPRAC).
It
applies
California’s
Rules
of
Professional
Conduct
to
generative
AI
scenarios.
Key
points:
California’s
guidance
stresses
confidentiality
–
attorneys
“must
not
input
any
confidential
client
information”
into
AI
tools
that
lack
adequate
protections
calbar.ca.gov.
Lawyers
should
vet
an
AI
vendor’s
security
and
data
use
policies,
and
anonymize
or
refrain
from
sharing
sensitive
data
unless
certain
it
will
be
protected
calbar.ca.gov
calbar.ca.gov.
The
duty
of
competence
and
diligence
requires
understanding
how
the
AI
works
and
its
limitations jdsupra.com.
Lawyers
should
review
AI
outputs
for
accuracy
and
bias,
and
“AI
should
never
replace
a
lawyer’s
professional
judgment.”
jdsupra.com
If
AI
assists
with
research
or
drafting,
the
attorney
must
critically
review
the
results.
The
guidance
also
addresses
supervision:
firms
should
train
and
supervise
lawyers
and
staff
in
proper
AI
use
jdsupra.com.
Communication
with
clients
may
entail
disclosing
AI
use
in
some
cases
–
e.g.
if
it
materially
affects
the
representation
–
but
California
did
not
mandate
disclosure
in
all
instances
jdsupra.com.
Finally,
the
guidance
notes
candor:
the
duty
of
candor
to
tribunals
means
attorneys
must
check
AI-generated
citations
and
facts
to
avoid
false
statements
in
court
jdsupra.com.
Overall,
California’s
approach
is
to
treat
AI
as
another
technology
that
must
be
used
consistent
with
existing
rules
on
competence,
confidentiality,
supervision,
etc.,
providing
“guiding
principles
rather
than
best
practices”
calbar.ca.gov.
(Source:
State
Bar
of
CA
Generative
AI
Guidance
jdsupra.com
jdsupra.com.)
Florida
–
Advisory
Opinion
24-1
(January
2024)
The
Florida
Bar
issued
Proposed
Advisory
Opinion
24-1
in
late
2023,
which
was
adopted
by
the
Bar’s
Board
of
Governors
in
January
2024
floridabar.org
floridabar.org.
Titled
“Lawyers’
Use
of
Generative
AI,”
this
formal
ethics
opinion
gives
a
green
light
to
using
generative
AI
“to
the
extent
that
the
lawyer
can
reasonably
guarantee
compliance
with
the
lawyer’s
ethical
obligations.” floridabar.org
It
identifies
four
focus
areas:
confidentiality,
oversight,
fees,
and
advertising
hinshawlaw.com
hinshawlaw.com.
Key
points:
Confidentiality:
Florida
stresses
that
protecting
client
confidentiality
(Rule
4-1.6)
is
paramount.
Lawyers
should
take
“reasonable
steps
to
prevent
inadvertent
or
unauthorized
disclosure”
of
client
info
by
an
AI
system
jdsupra.com.
The
opinion
“advisable
to
obtain
a
client’s
informed
consent
before
using
a
third-party
AI
that
would
disclose
confidential
information.”
jdsupra.com
This
aligns
with
prior
cloud-computing
opinions.
Oversight:
Generative
AI
must
be
treated
like
a
non-lawyer
assistant
–
the
lawyer
must
supervise
and
vet
its
work
jdsupra.com.
The
opinion
warns
that
lawyers
relying
on
AI
face
“the
same
perils
as
relying
on
an
overconfident
nonlawyer
assistant”
floridabar.org.
Attorneys
must
review
AI
outputs
(research,
drafts,
etc.)
for
accuracy
and
legal
soundness
before
use
floridabar.org.
Notably,
after
the
infamous
Mata
v.
Avianca
incident
of
fake
cases,
Florida
emphasizes
candor:
no
frivolous
or
false
material
from
AI
should
be
submitted
floridabar.org.
Fees:
Improved
efficiency
from
AI
cannot
be
used
to
charge
inflated
fees.
A
lawyer
“can
ethically
only
charge
a
client
for
actual
costs
incurred”
–
time
saved
by
AI
should
not
be
billed
as
if
the
lawyer
did
the
work
jdsupra.com.
If
a
lawyer
will
charge
for
using
an
AI
tool
(as
a
cost),
the
client
must
be
informed
in
writing
jdsupra.com.
And
training
time
–
a
lawyer’s
time
learning
an
AI
tool
–
cannot
be
billed
to
the
client
jdsupra.com.
Advertising:
If
lawyers
advertise
their
use
of
AI,
they
must
not
be
false
or
misleading.
Florida
specifically
notes
that
if
using
a
chatbot
to
interact
with
potential
clients,
those
users
must
be
told
they
are
interacting
with
an
AI,
not
a
human
lawyer
jdsupra.com.
Any
claims
about
an
AI’s
capabilities
must
be
objectively
verifiable
(no
puffery
that
your
AI
is
“better”
than
others
without
proof)
floridabar.org
floridabar.org.
In
sum,
Florida
concludes:
“a
lawyer
may
ethically
utilize
generative
AI,
but
only
to
the
extent
the
lawyer
can
reasonably
guarantee
compliance
with
duties
of
confidentiality,
candor,
avoiding
frivolous
claims,
truthfulness,
reasonable
fees,
and
proper
advertising.”
floridabar.org.
(Sources:
Florida
Bar
Op.
24-1
floridabar.org
jdsupra.com.)
New
York
State
Bar
Association
–
Task
Force
Report
(April
2024)
The
New
York
State
Bar
Association
(NYSBA)
did
not
issue
a
formal
ethics
opinion
via
its
ethics
committee,
but
its
Task
Force
on
Artificial
Intelligence
produced
a
comprehensive
85-page
report
adopted
by
the
House
of
Delegates
on
April
6,
2024
floridabar.org
floridabar.org.
This
report
includes
a
chapter
on
the
“Ethical
Impact”
of
AI
on
law
practice
floridabar.org,
effectively
providing
guidance
to
NY
lawyers.
It
mirrors
many
concerns
seen
in
formal
opinions
elsewhere.
Key
points:
The
NYSBA
report
underscores
competence
and
cautions
against
“techno-solutionism.”
It
notes
that
“a
refusal
to
use
technology
that
makes
legal
work
more
accurate
and
efficient
may
be
considered
a
refusal
to
provide
competent
representation” nysba.org
nysba.org
–
implying
lawyers
should
stay
current
with
helpful
AI
tools.
At
the
same
time,
it
warns
attorneys
not
to
blindly
trust
AI
as
a
silver
bullet.
The
report
coins
“techno-solutionism”
as
the
overbelief
that
new
tech
(like
gen
AI)
can
solve
all
problems,
reminding
lawyers
that
human
verification
is
still
required
nysba.org
nysba.org.
The
infamous
Avianca
case
is
cited
to
illustrate
the
need
to
verify
AI
outputs
and
supervise
the
“nonlawyer”
tool
(AI)
under
Rule
5.3
nysba.org.
The
report
addresses
the
duty
of
confidentiality
&
privacy
in
depth:
Lawyers
must
ensure
client
information
isn’t
inadvertently
shared
or
used
to
train
public
AI
models
nysba.org
nysba.org.
It
suggests
that
if
AI
tools
store
or
learn
from
inputs,
that
raises
confidentiality
concerns
nysba.org.
Client
consent
or
use
of
secure
“closed”
AI
systems
may
be
needed
to
protect
privileged
data.
The
report
also
covers
supervision
(Rule
5.3)
–
attorneys
should
supervise
AI
use
similarly
to
how
they
supervise
human
assistants
nysba.org.
It
touches
on
bias
and
fairness,
noting
generative
AI
trained
on
biased
data
could
perpetuate
discrimination,
which
lawyers
must
guard
against
lawnext.com.
Interestingly,
the
NYSBA
guidance
also
links
AI
use
to
reasonable
fees:
it
suggests
effective
use
of
AI
can
factor
into
whether
a
fee
is
reasonable
jdsupra.com
jdsupra.com
(e.g.
inefficiently
refusing
to
use
available
AI
might
waste
client
money,
whereas
using
AI
and
still
charging
full
hours
might
be
unreasonable).
In
sum,
New
York’s
bar
leaders
affirm
that
ethical
duties
of
competence,
confidentiality,
and
supervision
fully
apply
to
AI.
They
encourage
using
AI’s
benefits
to
improve
service,
but
caution
against
its
risks
and
urge
ongoing
attorney
oversight
floridabar.org
floridabar.org.
(Sources:
NYSBA
Task
Force
Report
nysba.org
nysba.org.)
New
York
City
Bar
Association
–
Formal
Opinion
2024-5
(August
2024)
The
New
York
City
Bar
Association
Committee
on
Professional
Ethics
issued
Formal
Ethics
Opinion
2024-5
on
August
7,
2024
nydailyrecord.com
nydailyrecord.com.
This
opinion,
in
a
user-friendly
chart
format,
provides
practical
guidelines
for
NYC
lawyers
on
generative
AI.
The
Committee
explicitly
aimed
to
give
“guardrails
and
not
hard-and-fast
restrictions”
in
this
evolving
area
nydailyrecord.com.
Key
points:
Confidentiality:
The
NYC
Bar
draws
a
distinction
between
“closed”
AI
systems
(e.g.
an
in-house
or
vendor
tool
that
does
not
share
data
externally)
and
public
AI
services
like
ChatGPT.
If
using
an
AI
that
stores
or
shares
inputs
outside
the
firm,
client
informed
consent
is
required
before
inputting
any
confidential
information
nydailyrecord.com.
Even
with
closed/internal
AI,
lawyers
must
maintain
internal
confidentiality
protections.
The
opinion
warns
lawyers
to
review
AI
Terms
of
Use
regularly
to
ensure
the
provider
isn’t
using
or
exposing
client
data
without
consent nydailyrecord.com.
Competence:
Echoing
others,
NYC
advises
that
lawyers
“understand
to
a
reasonable
degree
how
the
technology
works,
its
limitations,
and
the
applicable
Terms
of
Use”
before
using
generative
AI
nydailyrecord.com.
Attorneys
should
avoid
delegating
their
professional
judgment
to
AI;
any
AI
output
is
just
a
starting
point
or
draft
nydailyrecord.com.
Lawyers
must
ensure
outputs
are
accurate
and
tailored
to
the
client’s
needs
–
essentially,
verify
everything
and
edit
AI-generated
material
so
that
it
truly
serves
the
client’s
interests
nydailyrecord.com.
Supervision:
Firms
should
implement
policies
and
training
for
lawyers
and
staff
on
acceptable
AI
use
nydailyrecord.com.
The
Committee
notes
that
client
intake
chatbots
(if
used
on
a
firm’s
website,
for
example)
require
special
oversight
to
avoid
inadvertently
forming
attorney-client
relationships
or
giving
legal
advice
without
proper
vetting
nydailyrecord.com.
In
other
words,
a
chatbot
interacting
with
the
public
should
be
carefully
monitored
by
lawyers
to
ensure
it
doesn’t
mislead
users
about
its
nature
or
create
unintended
obligations
nydailyrecord.com.
The
NYC
Bar’s
guidance
aligns
with
California’s
in
format
and
substance,
reinforcing
that
the
core
duties
of
confidentiality,
competence
(tech
proficiency),
and
supervision
all
apply
when
lawyers
use
generative
AI
tools
nydailyrecord.com
nydailyrecord.com.
(Source:
NYC
Bar
Formal
Op.
2024-5nydailyrecord.com
nydailyrecord.com.)
New
Jersey
Supreme
Court
–
Preliminary
Guidelines
(January
2024)
In
New
Jersey,
the
state’s
highest
court
itself
weighed
in.
On
January
24,
2024,
the
New
Jersey
Supreme
Court’s
Committee
on
AI
and
the
Courts
issued
“Preliminary
Guidelines
on
the
Use
of
AI
by
New
Jersey
Lawyers,”
which
were
published
as
a
Notice
to
the
Bar
njcourts.gov
njcourts.gov.
These
guidelines,
effective
immediately,
aim
to
help
NJ
lawyers
comply
with
existing
Rules
of
Professional
Conduct
when
using
generative
AI
njcourts.gov.
Key
points:
The
Court
made
clear
that
AI
does
not
change
lawyers’
fundamental
duties.
Any
use
of
AI
“must
be
employed
with
the
same
commitment
to
diligence,
confidentiality,
honesty,
and
client
advocacy
as
traditional
methods
of
practice.”
njcourts.gov
In
other
words,
tech
advances
do
not
dilute
responsibilities.
The
NJ
guidelines
highlight
accuracy
and
truthfulness:
lawyers
have
an
ethical
duty
to
ensure
their
work
is
accurate,
so
they
must
always
check
AI-generated
content
for
“hallucinations”
or
errors
before
relying
on
it
jdsupra.com.
Submitting
false
or
fake
information
generated
by
AI
would
violate
rules
against
misrepresentations
to
the
court.
The
guidelines
reiterate
candor
to
tribunals
–
attorneys
must
not
present
AI-produced
output
containing
fabricated
cases
or
facts
(the
Mata/Avianca
situation
is
alluded
to)jdsupra.com.
Regarding
communication
and
client
consent,
NJ
took
a
measured
approach:
There
is
“no
per
se
requirement
to
inform
a
client”
about
every
AI
use,
unless
not
telling
the
client
would
prevent
the
client
from
making
informed
decisions
about
the
representation
jdsupra.com.
For
example,
if
AI
is
used
in
a
trivial
manner
(typo
correction,
formatting),
disclosure
isn’t
required;
but
if
it’s
used
in
substantive
tasks
that
affect
the
case,
lawyers
should
consider
informing
the
client,
especially
if
there’s
heightened
risk.
Confidentiality:
Lawyers
must
ensure
any
AI
tool
is
secure
to
avoid
inadvertent
disclosures
of
client
info
jdsupra.com.
This
echoes
the
duty
to
use
“reasonable
efforts”
to
safeguard
confidential
data
(RPC
1.6).
No
misconduct:
The
Court
reminds
that
all
rules
on
attorney
misconduct
(dishonesty,
fraud,
bias,
etc.)
apply
in
AI
usage
jdsupra.com.
For
instance,
using
AI
in
a
way
that
produces
discriminatory
outcomes
or
that
frustrates
justice
would
breach
Rule
8.4.
Supervision:
Law
firms
must
supervise
how
their
lawyers
and
staff
use
AI
jdsupra.com
–
establishing
internal
policies
to
ensure
ethical
use.
Overall,
New
Jersey’s
top
court
signaled
that
it
embraces
innovation
(noting
AI’s
potential
benefits)
but
insists
lawyers
“balance
the
benefits
of
innovation
while
safeguarding
against
misuse.”
njcourts.gov
(Sources:
NJ
Supreme
Court
Guidelines
jdsupra.com
jdsupra.com.)
Pennsylvania
&
Philadelphia
Bars
–
Joint
Opinion
2024-200
(June
2024)
The
Pennsylvania
Bar
Association
(PBA)
and
Philadelphia
Bar
Association
jointly
issued
Formal
Opinion
2024-200
in
mid-2024
lawnext.com
lawnext.com.
This
collaborative
opinion
(“Joint
Formal
Op.
2024-200”)
provides
ethical
guidance
for
Pennsylvania
lawyers
using
generative
AI.
It
repeatedly
emphasizes
that
the
same
rules
apply
to
AI
as
to
any
technology
lawnext.com.
Key
points:
The
joint
opinion
places
heavy
emphasis
on
competence
(Rule
1.1).
It
famously
states
“Lawyers
must
be
proficient
in
using
technological
tools
to
the
same
extent
they
are
in
traditional
methods”
lawnext.com.
In
other
words,
attorneys
should
treat
AI
as
part
of
the
competence
duty
–
understanding
e-discovery
software,
legal
research
databases,
and
now
generative
AI,
is
part
of
being
a
competent
lawyer
lawnext.com.
The
opinion
acknowledges
generative
AI’s
unique
risk:
it
can
hallucinate
(generate
false
citations
or
facts)
lawnext.com.
Thus,
due
diligence
is
required
–
lawyers
must
verify
all
AI
outputs,
especially
legal
research
results
and
citations
lawnext.com lawnext.com.
The
opinion
bluntly
warns
that
if
you
ask
AI
for
cases
and
“then
file
them
in
court
without
even
bothering
to
read
or
Shepardize
them,
that
is
stupid.”
lawnext.com
(The
opinion
uses
more
polite
language,
but
this
captures
the
spirit.)
It
highlights
bias
as
well:
AI
may
carry
implicit
biases
from
training
data,
so
lawyers
should
be
alert
to
any
discriminatory
or
skewed
content
in
AI
output
lawnext.com.
The
Pennsylvania/Philly
opinion
also
advises
lawyers
to
communicate
with
clients
about
AI
use.
Specifically,
lawyers
should
be
transparent
and
“provide
clear,
transparent
explanations”
of
how
AI
is
being
used
in
the
case
lawnext.com
lawnext.com.
In
some
situations,
obtaining
client
consent
before
using
certain
AI
tools
is
recommended
lawnext.com
lawnext.com
–
e.g.,
if
the
tool
will
handle
confidential
information
or
significantly
shape
the
legal
work.
The
opinion
lays
out
“12
Points
of
Responsibility”
for
using
gen
AI
lawnext.com
lawnext.com,
which
include
many
of
the
above:
ensure
truthfulness
and
accuracy
of
AI-derived
content,
double-check
citations,
maintain
confidentiality
(ensure
AI
vendors
keep
data
secure)
lawnext.com,
check
for
conflicts
(make
sure
use
of
AI
doesn’t
introduce
any
conflict
of
interest)
lawnext.com,
and
transparency
with
clients,
courts,
and
colleagues
about
AI
use
and
its
limitations
lawnext.com.
It
also
addresses
proper
billing
practices:
lawyers
shouldn’t
overcharge
when
AI
boosts
efficiency
lawnext.com.
If
AI
saves
time,
the
lawyer
should
not
bill
as
if
they
did
it
manually
–
they
may
bill
for
the
actual
time
or
consider
value-based
fees,
but
padding
hours
violates
the
rule
on
reasonable
fees
lawnext.com.
Overall,
the
Pennsylvania
and
Philly
bars
take
the
stance
that
embracing
AI
is
fine
—
even
beneficial
—
as
long
as
lawyers
“remain
fully
accountable
for
the
results,”
use
AI
carefully,
and
don’t
neglect
any
ethical
duty
in
the
process
lawnext.com
lawnext.com.
(Sources:
Joint
PBA/Phila.
Opinion
2024-200
summarized
by
Ambrogi
lawnext.com
lawnext.com.)
Kentucky
–
Ethics
Opinion
KBA
E-457
(March
2024)
The
Kentucky
Bar
Association
issued
Ethics
Opinion
KBA
E-457,
“The
Ethical
Use
of
Artificial
Intelligence
in
the
Practice
of
Law,”
on
March
15,
2024
cdn.ymaws.com.
This
formal
opinion
(finalized
after
a
comment
period
in
mid-2024)
provides
a
nuanced
roadmap
for
Kentucky
lawyers.
It
not
only
answers
basic
questions
but
also
offers
broader
insight,
reflecting
the
work
of
a
KBA
Task
Force
on
AI
techlawcrossroads.com.
Key
points:
Competence:
Like
other
jurisdictions,
Kentucky
affirms
that
keeping
abreast
of
technology
(including
AI)
is
a
mandatory
aspect
of
competence
techlawcrossroads.com
techlawcrossroads.com.
Kentucky’s
Rule
1.1
Comment
6
(equivalent
to
ABA
Comment
8)
says
lawyers
“should
keep
abreast
of
…
the
benefits
and
risks
associated
with
relevant
technology.”
The
opinion
stresses
this
is
not
optional:
“It’s
not
a
‘should’;
it’s
a
must.”
techlawcrossroads.com
Lawyers
cannot
ethically
ignore
AI’s
existence
or
potential
in
law
practice
techlawcrossroads.com
techlawcrossroads.com
(implying
that
failing
to
understand
how
AI
might
improve
service
could
itself
be
a
lapse
in
competence).
Disclosure
to
clients:
Kentucky
takes
a
practical
stance
that
there
is
“no
duty
to
disclose
to
the
client
the
‘rote’
use
of
AI
generated
research,”
absent
special
circumstances
techlawcrossroads.com.
If
an
attorney
is
just
using
AI
as
a
tool
(like
one
might
use
Westlaw
or
a
spell-checker),
they
generally
need
not
inform
the
client.
However,
there
are
important
exceptions
–
if
the
client
has
specifically
limited
use
of
AI,
or
if
use
of
AI
presents
significant
risk
or
would
require
client
consent
under
the
rules,
then
disclosure
is
needed
techlawcrossroads.com.
Lawyers
should
discuss
risks
and
benefits
of
AI
with
clients
if
client
consent
is
required
for
its
use
(for
example,
if
AI
will
process
confidential
data,
informed
consent
may
be
wise)
techlawcrossroads.com.
Fees:
KBA
E-457
is
very
direct
about
fees
and
AI.
If
AI
significantly
reduces
the
time
spent
on
a
matter,
the
lawyer
may
need
to
reduce
their
fees
accordingly
techlawcrossroads.com.
A
lawyer
cannot
charge
a
client
as
if
a
task
took
5
hours
if
AI
allowed
it
to
be
done
in
1
hour
–
that
would
make
the
fee
unreasonable.
The
opinion
also
says
a
lawyer
can
only
charge
a
client
for
the
expense
of
using
AI
(e.g.,
the
cost
of
a
paid
AI
service)
if
the
client
agrees
to
that
fee
in
writing
techlawcrossroads.com.
Otherwise,
passing
along
AI
tool
costs
may
be
impermissible.
In
short,
AI’s
efficiencies
should
benefit
clients,
not
become
a
hidden
profit
center.
Confidentiality:
Lawyers
have
a
“continuing
duty
to
safeguard
client
information
if
they
use
AI,”
and
must
comply
with
all
applicable
court
rules
on
AI
use
techlawcrossroads.com.
This
means
vetting
AI
providers’
security
and
ensuring
no
confidential
data
is
exposed.
Kentucky
echoes
that
attorneys
must
understand
the
terms
and
operation
of
any
third-party
AI
system
they
use
techlawcrossroads.com.
They
should
know
how
the
AI
service
stores
and
uses
data.
Court
rules
compliance:
Notably,
the
opinion
reminds
lawyers
to
follow
any
court-imposed
rules
about
AI
(for
instance,
if
a
court
requires
disclosure
of
AI-drafted
filings,
the
lawyer
must
do
so)
cdn.ymaws.com.
Firm
policies
and
training:
KBA
E-457
advises
law
firms
to
create
informed
policies
on
AI
use
and
to
supervise
those
they
manage
in
following
these
policies
techlawcrossroads.com.
In
summary,
Kentucky’s
opinion
encourages
lawyers
to
embrace
AI’s
potential
but
to
do
so
carefully:
stay
competent
with
the
technology,
be
transparent
when
needed,
adjust
fees
fairly,
protect
confidentiality,
and
always
maintain
ultimate
responsibility
for
the
work.
It
concludes
that
Kentucky
lawyers
“cannot
run
from
or
ignore
AI.”
techlawcrossroads.com
(Source:
KBA
E-457
(2024)
via
TechLaw
Crossroads
summary
techlawcrossroads.com
techlawcrossroads.com.)
North
Carolina
–
Formal
Ethics
Opinion
2024-1
(November
2024)
The
North
Carolina
State
Bar
adopted
2024
Formal
Ethics
Opinion
1,
“Use
of
Artificial
Intelligence
in
a
Law
Practice,”
on
November
1,
2024
ncbar.gov
ncbar.gov.
This
opinion
squarely
addresses
whether
and
how
NC
lawyers
can
use
AI
tools
consistent
with
their
ethical
duties.
Key
points:
The
NC
State
Bar
gives
a
cautious
“Yes”
to
using
AI,
under
specific
conditions:
“Yes,
provided
the
lawyer
uses
any
AI
program,
tool,
or
resource
competently,
securely
to
protect
client
confidentiality,
and
with
proper
supervision
when
relying
on
the
AI’s
work
product.”
ncbar.gov.
That
single
sentence
captures
the
three
pillars
of
NC’s
guidance:
competence,
confidentiality,
and
supervision.
NC
acknowledges
that
nothing
in
the
Rules
explicitly
prohibits
AI
use
ncbar.gov,
so
it
comes
down
to
applying
existing
rules.
Competence:
Lawyers
must
understand
the
technology
sufficiently
to
use
it
effectively
and
safely
ncbar.gov.
Rule
1.1
and
its
Comment
in
NC
(which,
like
the
ABA,
includes
tech
competence)
require
lawyers
to
know
what
they
don’t
know
–
if
a
lawyer
isn’t
competent
with
an
AI
tool,
they
must
get
up
to
speed
or
refrain.
NC
emphasizes
that
using
AI
is
often
the
lawyer’s
own
decision
but
it
must
be
made
prudently,
considering
factors
like
the
tool’s
reliability
and
cost-benefit
for
the
client
ncbar.gov
ncbar.gov.
Confidentiality
&
Security:
Rule
1.6(c)
in
North
Carolina
obligates
lawyers
to
take
reasonable
efforts
to
prevent
unauthorized
disclosure
of
client
info.
So,
before
using
any
cloud-based
or
third-party
AI,
the
lawyer
must
ensure
it
is
“sufficiently
secure
and
compatible
with
the
lawyer’s
confidentiality
obligations.”
ncbar.gov
ncbar.gov.
The
opinion
suggests
attorneys
evaluate
providers
like
they
would
any
vendor
handling
client
data
–
e.g.,
examine
terms
of
service,
data
storage
policies,
etc.,
similar
to
prior
NC
guidance
on
cloud
computing
ncbar.gov
ncbar.gov.
If
the
AI
is
“self-learning”
(using
inputs
to
improve
itself),
lawyers
should
be
wary
that
client
data
might
later
resurface
to
others
ncbar.gov.
NC
stops
short
of
mandating
client
consent
for
AI
use,
but
it
implies
that
if
an
AI
tool
can’t
be
used
consistent
with
confidentiality,
then
either
don’t
use
it
or
get
client
permission.
Supervision
and
Independent
Judgment:
NC
treats
AI
output
like
work
by
a
nonlawyer
assistant.
Under
Rule
5.3,
lawyers
must
supervise
the
use
of
AI
tools
and
“exercise
independent
professional
judgment
in
determining
how
(or
if)
to
use
the
product
of
an
AI
tool”
for
a
client
ncbar.gov
ncbar.gov.
This
means
a
lawyer
cannot
blindly
accept
an
AI’s
result
–
they
must
review
and
verify
it
before
relying
on
it.
If
an
AI
drafts
a
contract
or
brief,
the
lawyer
is
responsible
for
editing
and
ensuring
it’s
correct
and
appropriate.
NC
explicitly
analogizes
AI
to
both
other
software
and
to
nonlawyer
staff:
AI
is
“between”
a
software
tool
and
a
nonlawyer
assistant
in
how
we
think
of
it
ncbar.gov.
Thus,
the
lawyer
must
both
know
how
to
use
the
software
and
supervise
its
output
as
if
it
were
a
junior
employee’s
work.
Bottom
line:
NC
FO
2024-1
concludes
that
a
lawyer
may
use
AI
in
practice
–
for
tasks
like
document
review,
legal
research,
drafting,
etc.
–
as
long
as
the
lawyer
remains
fully
responsible
for
the
outcome
ncbar.gov
ncbar.gov.
The
opinion
purposefully
doesn’t
dictate
when
AI
is
appropriate
or
not,
recognizing
the
technology
is
evolving
ncbar.gov.
But
it
clearly
states
that
if
a
lawyer
decides
to
employ
AI,
they
are
“fully
responsible”
for
its
use
and
must
ensure
it
is
competent
use,
confidential
use,
and
supervised
use
ncbar.gov
ncbar.gov.
(Source:
NC
2024
FEO-1ncbar.gov
ncbar.gov.)
Texas
–
Proposed
Opinion
2024-6
(Draft,
November
2024)
The
State
Bar
of
Texas
Professional
Ethics
Committee
has
circulated
a
Proposed
Ethics
Opinion
No.
2024-6
(posted
for
public
comment
on
Nov.
19,
2024)
regarding
lawyers’
use
of
generative
AI texasbar.com.
(As
of
this
writing,
it
is
a
draft
opinion
awaiting
final
adoption.)
This
Texas
draft
provides
a
“high-level
overview”
of
ethical
issues
raised
by
AI,
requested
by
a
Bar
task
force
on
AI texasbar.com.
Key
points
(draft):
The
proposed
Texas
opinion
covers
familiar
ground.
It
notes
the
duty
of
competence
(Rule
1.01)
extends
to
understanding
relevant
technology
texasbar.com.
Texas
specifically
cites
its
prior
ethics
opinions
on
cloud
computing
and
metadata,
which
required
lawyers
to
have
a
“reasonable
and
current
understanding”
of
those
technologies
texasbar.com
texasbar.com.
By
analogy,
any
Texas
lawyer
using
generative
AI
“must
have
a
reasonable
and
current
understanding
of
the
technology”
and
its
capabilities
and
limits
texasbar.com.
In
practical
terms,
this
means
lawyers
should
educate
themselves
on
how
tools
like
ChatGPT
actually
work
(e.g.
that
they
predict
text
rather
than
retrieve
vetted
sources)
and
what
their
known
pitfalls
are
texasbar.com.
The
draft
opinion
spends
time
describing
Mata
v.
Avianca
to
illustrate
the
dangers
of
not
understanding
AI’s
lack
of
a
reliable
legal
database
texasbar.com
texasbar.com.
On
confidentiality
(Rule
1.05
in
Texas),
the
opinion
again
builds
on
prior
guidance:
lawyers
must
safeguard
client
information
when
using
any
third-party
service
texasbar.com
texasbar.com.
It
suggests
precautions
similar
to
those
for
cloud
storage:
“acquire
a
general
understanding
of
how
the
technology
works;
review
(and
potentially
renegotiate)
the
Terms
of
Service;
[ensure]
the
provider
will
keep
data
confidential;
and
stay
vigilant
about
data
security.”
texasbar.com.
(These
examples
are
drawn
from
Texas
Ethics
Op.
680
on
cloud
computing,
which
the
AI
opinion
heavily
references.)
If
an
AI
tool
cannot
be
used
in
a
way
that
protects
confidential
info,
the
lawyer
should
not
use
it
for
those
purposes.
The
Texas
draft
also
flags
duty
to
avoid
frivolous
submissions
(Rule
3.01)
and
duty
of
candor
to
tribunal
(Rule
3.03)
as
directly
relevant
texasbar.com.
Using
AI
doesn’t
excuse
a
lawyer
from
these
obligations
–
citing
fake
cases
or
making
false
statements
is
no
less
an
ethical
violation
because
an
AI
generated
them.
Lawyers
must
thoroughly
vet
AI-generated
legal
research
and
content
to
ensure
it’s
grounded
in
real
law
and
facts
texasbar.com
texasbar.com.
The
opinion
essentially
says:
if
you
choose
to
use
AI,
you
must
double-check
its
work
just
as
you
would
a
junior
lawyer’s
memo
or
a
nonlawyer
assistant’s
draft.
Supervision
(Rules
5.01,
5.03):
Supervising
partners
should
have
firm-wide
measures
so
that
any
use
of
AI
by
their
team
is
ethical
texasbar.com
texasbar.com.
This
could
mean
creating
policies
on
approved
AI
tools
and
requiring
verification
of
AI
outputs.
In
summary,
the
Texas
proposed
opinion
doesn’t
ban
generative
AI;
it
provides
a
“snapshot”
of
issues
and
reinforces
that
core
duties
of
competence,
confidentiality,
candor,
and
supervision
must
guide
any
use
of
AI
in
practice
texasbar.com
texasbar.com.
(The
committee
acknowledges
the
AI
landscape
is
rapidly
changing,
so
they
focused
on
broad
principles
rather
than
specifics
that
might
soon
be
outdated
texasbar.com.)
Once
finalized,
Texas’s
opinion
will
likely
align
with
the
consensus:
lawyers
can
harness
AI’s
benefits
if
they
remain
careful
and
accountable.
(Source:
Texas
Proposed
Op.
2024-6
texasbar.com
texasbar.com.)
Virginia
State
Bar
–
AI
Guidance
Update
(August
2024)
In
2024
the
Virginia
State
Bar
released
a
short
set
of
guidelines
on
generative
AI
as
an
update
on
its
website
(around
August
2024)
nydailyrecord.com.
This
concise
guidance
stands
out
for
its
practicality
and
flexibility.
Rather
than
an
extensive
opinion,
Virginia
issued
overarching
advice
that
can
adapt
as
AI
technology
evolves
nydailyrecord.com.
Key
points:
Virginia
first
emphasizes
that
lawyers’
basic
ethical
responsibilities
“have
not
changed”
due
to
AI,
and
that
generative
AI
presents
issues
“fundamentally
similar”
to
those
with
other
technology
or
with
supervising
people
nydailyrecord.com.
This
frames
the
guidance:
existing
rules
suffice.
On
confidentiality,
the
Bar
advises
lawyers
to
vet
how
AI
providers
handle
data
just
as
they
would
with
any
vendor
nydailyrecord.com
nydailyrecord.com
.
Legal-specific
AI
products
(designed
for
lawyers,
with
better
data
security)
may
offer
more
protection,
but
even
then
attorneys
“must
make
reasonable
efforts
to
assess”
the
security
and
“whether
and
under
what
circumstances”
confidential
info
could
be
exposed
nydailyrecord.com.
In
other
words,
even
if
using
an
AI
tool
marketed
as
secure
for
lawyers,
you
should
confirm
that
it
truly
keeps
your
client’s
data
confidential
(no
sharing
or
training
on
it
without
consent)
nydailyrecord.com
nydailyrecord.com.
Virginia
notably
aligns
with
most
jurisdictions
(and
diverges
from
a
stricter
ABA
stance)
regarding
client
consent:
“there
is
no
per
se
requirement
to
inform
a
client
about
the
use
of
generative
AI
in
their
matter”
nydailyrecord.com.
Unless
something
about
the
AI
use
would
necessitate
client
disclosure
(e.g.,
an
agreement
with
the
client,
or
an
unusual
risk
like
using
a
very
public
AI
for
sensitive
info),
lawyers
generally
need
not
obtain
consent
for
routine
AI
use
nydailyrecord.com.
This
is
consistent
with
the
idea
that
using
AI
can
be
like
using
any
software
tool
behind
the
scenes.
Next,
supervision
and
verification:
The
bar
stresses
that
lawyers
must
review
all
AI
outputs
as
they
would
work
done
by
a
junior
attorney
or
nonlawyer
assistant
nydailyrecord.com
nydailyrecord.com.
Specifically,
“verify
that
any
citations
are
accurate
(and
real)”
and
generally
ensure
the
AI’s
work
product
is
correct
nydailyrecord.com.
This
duty
extends
to
supervising
others
in
the
firm
–
if
a
paralegal
or
associate
uses
AI,
the
responsible
lawyer
must
ensure
they
are
doing
so
properly nydailyrecord.com.
On
fees
and
billing,
Virginia
takes
a
clear
stance:
a
lawyer
may
not
bill
a
client
for
time
not
actually
spent
due
to
AI
efficiency
gains
nydailyrecord.com.
“A
lawyer
may
not
charge
an
hourly
fee
in
excess
of
the
time
actually
spent
…
and
may
not
bill
for
time
saved
by
using
generative
AI.”
nydailyrecord.com
If
AI
cuts
a
research
task
from
5
hours
to
1,
you
can’t
still
charge
5
hours.
The
Bar
suggests
considering
alternative
fee
arrangements
to
account
for
AI’s
value,
instead
of
hourly
billing
windfalls
nydailyrecord.com.
As
for
passing
along
AI
tool
costs:
the
Bar
says
you
can’t
charge
the
client
for
your
AI
subscription
or
usage
unless
it’s
a
reasonable
charge
and
permitted
by
the
fee
agreement
nydailyrecord.com.
Finally,
Virginia
reminds
lawyers
to
stay
aware
of
any
court
rules
about
AI.
Some
courts
(even
outside
Virginia)
have
begun
requiring
attorneys
to
certify
that
filings
were
checked
for
AI-generated
falsehoods,
or
even
prohibiting
AI-drafted
documents
absent
verification.
Virginia’s
guidance
highlights
that
lawyers
must
comply
with
any
such
disclosure
or
anti-AI
rules
in
whatever
jurisdiction
they
are
in
nydailyrecord.com
nydailyrecord.com.
Overall,
the
Virginia
State
Bar’s
message
is:
use
common
sense
and
existing
rules.
Be
transparent
when
needed,
protect
confidentiality,
supervise
and
double-check
AI
outputs,
bill
fairly,
and
follow
any
new
court
requirements
nydailyrecord.com
nydailyrecord.com.
This
short-form
guidance
was
praised
for
being
“streamlined”
and
adaptable
as
AI
tools
continue
to
change
nydailyrecord.com.
(Source:
Virginia
State
Bar
AI
Guidance
via
N.Y.
Daily
Record
nydailyrecord.com
nydailyrecord.com.)
District
of
Columbia
Bar
–
Ethics
Opinion
388
(September
2024)
The
D.C.
Bar
issued
Ethics
Opinion
388:
“Attorneys’
Use
of
Generative
AI
in
Client
Matters”
in
2024
(the
second
half
of
the
year)
kaiserlaw.com.
This
opinion
closely
analyzes
the
ethical
implications
of
lawyers
using
gen
AI,
using
the
well-known
Mata
v.
Avianca
incident
as
a
teaching
example
kaiserlaw.com
kaiserlaw.com
.
It
then
organizes
guidance
under
specific
D.C.
Rules
of
Professional
Conduct.
Key
points:
The
opinion
breaks
its
analysis
into
categories
of
duties
kaiserlaw.com
kaiserlaw.com:
-
Competence
(Rule
1.1):
D.C.
reiterates
that
tech
competence
is
part
of
a
lawyer’s
duty.
Attorneys
must
“keep
abreast
of
…
practice
[changes],
including
the
benefits
and
risks
of
relevant
technology.”
kaiserlaw.com
Before
using
AI,
lawyers
should
understand
how
it
works,
what
it
does,
and
its
potential
dangers
kaiserlaw.com
kaiserlaw.com.
The
opinion
vividly
quotes
a
description
of
AI
as
“an
omniscient,
eager-to-please
intern
who
sometimes
lies
to
you.”
kaiserlaw.com
kaiserlaw.com
In
practical
terms,
D.C.
lawyers
must
know
that
AI
output
can
be
very
convincing
but
incorrect.
The
Mata/Avianca
saga
–
where
a
lawyer
unknowingly
relied
on
a
tool
that
“sometimes
lies”
–
underscores
the
need
for
knowledge
and
caution
dcbar.org
dcbar.org.
-
Confidentiality
(Rule
1.6):
D.C.’s
Rule
1.6(f)
specifically
requires
lawyers
to
prevent
unauthorized
use
of
client
info
by
third-party
service
providers
kaiserlaw.com
kaiserlaw.com.
This
applies
to
AI
providers.
Lawyers
are
instructed
to
ask
themselves:
“Will
information
I
provide
[to
the
AI]
be
visible
to
the
AI
provider
or
others?
Will
my
input
affect
future
answers
for
other
users
(potentially
revealing
my
data)?”
kaiserlaw.com
kaiserlaw.com.
If
using
an
AI
tool
that
sends
data
to
an
external
server,
the
lawyer
must
ensure
that
data
is
protected.
D.C.
likely
would
advise
using
privacy-protective
settings
or
choosing
tools
that
allow
opt-outs
of
data
sharing,
or
obtaining
client
consent
if
needed.
Essentially,
treat
AI
like
any
outside
vendor
under
Rule
5.3/1.6:
do
due
diligence
to
ensure
confidentiality
is
preserved
kaiserlaw.com
kaiserlaw.com.
-
Supervision
(Rules
5.1
&
5.3):
A
lawyer
must
supervise
both
other
lawyers
and
nonlawyers
in
the
firm
regarding
AI
use
kaiserlaw.com
kaiserlaw.com.
This
may
entail
firm
policies:
e.g.,
vetting
which
AI
tools
are
approved
and
training
staff
to
verify
AI
output
for
accuracy
kaiserlaw.com
kaiserlaw.com.
If
a
subordinate
attorney
or
paralegal
uses
AI,
the
supervising
attorney
should
reasonably
ensure
they
are
doing
so
in
compliance
with
all
ethical
duties
(and
correcting
any
mistakes).
The
opinion
views
AI
as
an
extension
of
one’s
team
–
requiring
oversight.
-
Candor
to
Tribunal
&
Fairness
(Rules
3.3
and
3.4):
Simply
put,
a
lawyer
cannot
make
false
statements
to
a
court
or
submit
false
evidence
kaiserlaw.com
kaiserlaw.com.
D.C.
notes
the
existing
comment
to
Rule
3.3
already
forbids
knowingly
misrepresenting
legal
authority.
Opinion
388
makes
clear
this
includes
presenting
AI-fabricated
cases
or
quotes
as
if
they
were
real
kaiserlaw.com
kaiserlaw.com.
Even
if
the
lawyer
didn’t
intend
to
lie,
relying
on
AI
without
checking
and
thereby
filing
fake
citations
could
violate
the
duty
of
candor
(at
least
negligently,
if
not
knowingly).
The
lesson:
no
courtroom
use
of
AI
content
without
verification.
Also,
under
fairness
to
opposing
party
(3.4),
one
must
not
use
AI
to
manipulate
evidence
or
discovery
unfairly.
-
Fees
(Rule
1.5):
The
D.C.
Bar
echoed
the
consensus
on
billing:
if
you
charge
hourly,
you
“may
never
charge
a
client
for
time
not
expended.”
kaiserlaw.com
Increased
efficiency
through
AI
cannot
be
used
as
an
opportunity
to
overcharge.
They
cite
a
1996
D.C.
opinion
which
said
that
a
lawyer
who
is
more
efficient
than
expected
(perhaps
through
technology
or
expertise)
can’t
then
bill
extra
hours
that
weren’t
worked
kaiserlaw.com
kaiserlaw.com.
The
same
principle
applies
now:
time
saved
by
AI
is
the
client’s
benefit,
not
the
lawyer’s
windfall.
So
if
AI
drafts
a
contract
in
1
hour
whereas
manual
drafting
would
take
5,
the
lawyer
cannot
bill
5
hours
–
only
the
1
hour
actually
spent
(or
use
a
flat
fee
structure
that
the
client
agrees
on,
but
not
lie
about
hours).
-
Client
Files
(Rule
1.16(d)):
Interestingly,
D.C.
Opinion
388
touches
on
whether
AI
interactions
should
be
retained
as
part
of
the
client
file
upon
termination
kaiserlaw.com
kaiserlaw.com.
D.C.
law
requires
returning
the
“entire
file”
to
a
client,
including
internal
notes,
unless
they
are
purely
administrative.
The
opinion
suggests
lawyers
should
consider
saving
important
AI
prompts
or
outputs
used
in
the
representation
as
part
of
the
file
material
that
may
need
to
be
provided
to
the
client
kaiserlaw.com
kaiserlaw.com.
For
example,
if
an
attorney
used
an
AI
tool
to
generate
a
research
memo
or
a
draft
letter
that
was
then
edited
and
sent
to
a
client,
the
initial
AI-generated
text
might
be
analogous
to
a
draft
or
research
note.
This
is
a
new
facet
many
haven’t
considered:
how
to
handle
AI-generated
work
product
in
terms
of
file
retention.
In
conclusion,
D.C.’s
Ethics
Opinion
388
aligns
with
other
jurisdictions
while
adding
thoughtful
details.
It
“recognizes
AI
may
eventually
greatly
benefit
the
legal
industry,”
but
in
the
meantime
insists
that
lawyers
“must
be
vigilant”
kaiserlaw.com.
The
overarching
theme
is
captured
in
the
NPR
quote:
treat
AI
like
an
intern
who
needs
close
supervision
kaiserlaw.com.
Do
not
assume
the
AI
is
correct;
double-check
everything,
maintain
confidentiality,
and
use
the
tool
wisely
and
transparently.
D.C.
lawyers
were
effectively
told
that
generative
AI
is
permissible
to
use,
but
only
in
a
manner
that
fully
preserves
all
ethical
obligations
as
enumerated
above
kaiserlaw.com.
(Sources:
D.C.
Ethics
Op.
388
via
Kaiser
summary
kaiserlaw.com
kaiserlaw.com.)
Specialty
Bar
and
Licensing
Bodies
U.S.
Patent
and
Trademark
Office
(USPTO)
–
Practice
Guidance
(2023–2024)
Beyond
state
bars,
at
least
one
lawyer
licensing
body
has
addressed
AI:
the
USPTO,
which
regulates
patent
and
trademark
attorneys.
In
2023
and
2024,
the
USPTO
issued
guidance
on
the
use
of
AI
by
practitioners
in
proceedings
before
the
Office.
On
April
10,
2024,
the
USPTO
published
a
notice
(and
a
Federal
Register
guidance
document)
concerning
“the
use
of
AI
tools
by
parties
and
practitioners”
before
the
USPTO
uspto.gov
uspto.gov.
This
followed
an
earlier
internal
guidance
on
Feb
6,
2024
for
USPTO
administrative
tribunals
uspto.gov.
Key
points:
The
USPTO
made
clear
that
existing
duties
in
its
rules
(37
C.F.R.
and
USPTO
ethics
rules)
“apply
regardless
of
how
a
submission
is
generated.”
uspto.gov
In
other
words,
whether
a
patent
application
or
brief
is
written
by
a
human
or
with
AI
assistance,
the
attorney
is
fully
responsible
for
compliance
with
all
requirements.
The
guidance
reminds
practitioners
of
pertinent
rules
and
“helps
inform
…
the
risks
associated
with
AI”
while
giving
suggestions
to
mitigate
them
uspto.gov.
For
example,
patent
attorneys
have
a
duty
of
candor
and
truthfulness
in
dealings
with
the
Office;
using
AI
that
produces
inaccurate
statements
could
violate
that
duty
if
not
corrected.
USPTO
Director
Kathi
Vidal
emphasized
“the
integrity
of
our
proceedings”
must
be
protected
and
that
the
USPTO
encourages
“safe
and
responsible
use
of
AI”
to
benefit
efficiency
uspto.gov.
But
critically,
lawyers
and
agents
must
ensure
AI
is
not
misused
or
left
unchecked.
The
USPTO
guidance
likely
points
to
rules
akin
to
Fed.
R.
Civ.
P.
11:
patent
practitioners
must
make
a
reasonable
inquiry
that
submissions
(claims,
arguments,
prior
art
citations,
etc.)
are
not
frivolous
or
false,
even
if
AI
was
used
as
a
tool.
It
also
addresses
confidentiality
and
data
security
concerns:
patent
lawyers
often
handle
sensitive
technical
data,
so
if
they
use
AI
for
drafting
or
searching
prior
art,
they
must
ensure
they
aren’t
inadvertently
disclosing
invention
details.
The
USPTO
suggested
mitigation
steps
such
as:
carefully
choosing
AI
tools
(perhaps
ones
that
run
locally
or
have
strong
confidentiality
promises),
verifying
outputs
(especially
legal
conclusions
or
prior
art
relevance),
and
staying
updated
as
laws/regulations
evolve
in
this
area
uspto.gov
uspto.gov.
In
sum,
the
USPTO’s
stance
is
aligned
with
the
bar
associations’:
AI
can
expand
access
and
efficiency,
but
practitioners
must
use
it
responsibly.
They
explicitly
note
that
AI’s
use
“does
not
change”
the
attorney’s
obligations
to
avoid
delay,
avoid
unnecessary
cost,
and
uphold
the
quality
of
submissions
uspto.gov.
The
patent
bar
was
cautioned
by
the
USPTO,
much
as
litigators
were
by
the
courts,
that
any
mistakes
made
by
AI
will
be
treated
as
the
practitioner’s
mistakes.
The
Office
will
continue
to
“listen
to
stakeholders”
and
may
update
policies
as
needed uspto.gov,
but
for
now
practitioners
should
follow
this
guidance
and
existing
rules.
(Source:
USPTO
Director’s
announcement
uspto.gov
uspto.gov.)
Other
Specialty
Groups
Other
specialty
lawyer
groups
and
bar
associations
have
engaged
in
policy
discussions
about
AI
(for
example,
the
American
Immigration
Lawyers
Association
and
various
sections
of
the
ABA
have
offered
CLE
courses
or
informal
tips
on
AI
use).
While
these
may
not
be
formal
ethics
opinions,
they
echo
the
themes
above:
maintain
client
confidentiality,
verify
AI
output,
and
remember
that
technology
doesn’t
diminish
a
lawyer’s
own
duties.
In
summary,
across
national,
state,
and
local
bodies
in
the
U.S.,
a
clear
consensus
has
emerged:
Lawyers
may
use
generative
AI
tools
in
their
practice,
but
they
must
do
so
cautiously
and
in
full
compliance
with
their
ethical
obligations.
Key
recommendations
include
obtaining
client
consent
if
confidential
data
will
be
involved
jdsupra.com
nydailyrecord.com,
understanding
the
technology’s
limits
(no
blind
trust
in
AI)
nysba.org
kaiserlaw.com,
thoroughly
vetting
and
supervising
AI
outputs
ncbar.gov
kaiserlaw.com,
and
ensuring
that
AI-driven
efficiency
benefits
the
client
(through
accurate
work
and
fair
fees)
lawnext.com
kaiserlaw.com.
All
the
formal
opinions
–
from
the
ABA
to
state
bars
like
California,
Florida,
New
York,
Pennsylvania,
Kentucky,
North
Carolina,
Virginia,
D.C.,
and
others
–
converge
on
the
message
that
the
lawyer
is
ultimately
responsible
for
everything
their
generative
AI
tool
does
or
produces.
Generative
AI
can
assist
with
research,
drafting,
and
more,
but
it
remains
“a
tool
that
assists
but
does
not
replace
legal
expertise
and
analysis.”
lawnext.com.
As
the
Pennsylvania
opinion
neatly
put
it,
in
more
colloquial
terms:
don’t
be
stupid
–
a
lawyer
cannot
abdicate
common
sense
and
professional
judgment
to
an
AI
lawnext.com.
By
following
these
ethics
guidelines,
lawyers
can
harness
AI’s
benefits
(greater
efficiency
and
capability)
while
upholding
their
duties
to
clients,
courts,
and
the
justice
system.
Sources:
Formal
ethics
opinions
and
guidance
from
the
ABA
and
numerous
bar
associations,
including
ABA
Formal
Op.
512
jenkinslaw.org,
State
Bar
of
California
guidance
jdsupra.com,
Florida
Bar
Op.
24-1
jdsupra.com,
New
Jersey
Supreme
Court
AI
Guidelines
jdsupra.com,
New
York
City
Bar
Op.
2024-5
nydailyrecord.com,
Pennsylvania
Bar
&
Philadelphia
Bar
Joint
Op.
lawnext.com,
Kentucky
Bar
Op.
E-457
techlawcrossroads.com,
North
Carolina
Formal
Op.
2024-1
ncbar.gov,
D.C.
Bar
Op.
388
kaiserlaw.com,
and
USPTO
practitioner
guidance
uspto.gov.
Each
of
these
sources
provides
detailed
discussion
of
ethical
concerns
and
best
practices
for
using
generative
AI
in
law.
