by Joseph Brophy for the Maricopa Lawyer, a publication of the Maricopa County Bar Association
AI has officially arrived in the legal profession. For about a year now, there has been a string of stories about every two months where a court has sanctioned lawyers for the use of generative artificial intelligence (GAI), usually ChatGPT, that resulted in briefing to the court that contained bogus case citations and nonsensical argument. Meanwhile, both Lexis and Westlaw are in rolling out their GAI programs, respectively called Lexis+AI and Co-Counsel.
The ABA defines GAI as AI that can create various types of new content, including text, images, audio, video, and software code in response to a user’s prompts and questions. To accomplish this, these tools analyze large amounts of digital text culled from the internet or proprietary data sources. When presenting their GAI programs to prospective customers, both Lexis and Westlaw are quick to make clear their products do not carry the same risks as ChatGPT because their source material is taken from their existing databases rather than sucked up from the internet. GAI tools may assist lawyers in tasks such as legal research, contract review, due diligence, document review, regulatory compliance, and drafting letters, contracts, briefs, and other legal documents.
In July, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 512, which is the first ABA opinion on GAI. Any lawyer who relies on GAI in their practice should read Formal Opinion 512. Below are the highlights and applicable rules.
First, under ER 1.1 (competency) a lawyer must acquire a reasonable understanding of the risks and benefits of GAI, either personally or through the use of the expertise of others. Formal Opinion 512 specifically identifies as a risk the “hallucinations” by GAI (ChatGPT is notorious for hallucinations) that have created ethical problems for some lawyers. The ABA accurately defines “hallucinations” as “ostensibly plausible responses [to a GAI prompt entered by a lawyer] with no basis in law or fact.” In almost every case where lawyers have been subject to discipline for using GAI, the trouble started with the lawyer’s assumption that the information generated was accurate and did nothing to verify that assumption.
Second, before lawyers input information relating to the representation of a client into a GAI tool, they must evaluate the risks that the information will be disclosed to or accessed by others outside the firm. Depending on what GAI tool you are using, the protections of confidential information (ER 1.6 – confidentiality) will vary wildly. For example, Lexis AI has a feature that will summarize up to 50 pages of deposition transcript at a time, and then will erase the uploaded information shortly after it is uploaded, which minimizes the risk that a client’s confidential information will be accessed by a third-party. Not all GAI platforms are as concerned about the confidentiality of information as one that is designed specifically for use by lawyers.
The disclosure of client confidential information requires informed consent. If you or your firm is considering using GAI, it might be a good idea to disclose that in writing to your clients and provide the risks and benefits of such disclosure. Formal Opinion 512 states: “To obtain informed consent when using a GAI tool, merely adding general, boiler-plate provisions to engagement letters purporting to authorize the lawyer to use GAI is not sufficient.”
Third, beyond the disclosure of confidential information, a lawyer should inform the client (ER 1.4 – communication) if they intend to use GAI for a particular task so that the client can understand the risks and benefits. For example, if the lawyer is using GAI to evaluate potential litigation outcomes or jury selection, the client should be informed. Moreover, just as with anything else, the use of GAI is not a substitute for the lawyer exercising their independent professional judgment. Blaming GAI will not be a great defense in front of the state bar or in a malpractice suit if your GAI gives you bad information. Not all uses of GAI must be disclosed to a client. Whether and how much to disclose to the client will depend on how much influence the use of GAI has on the representation.
Fourth, as previously mentioned, the primary trouble GAI has caused lawyers arises from hallucinations that result in frivolous arguments or phony legal citations (ER 3.1 – frivolous claims or defenses). In almost every case, that trouble is compounded by the lawyer not falling on their sword and coming clean with the court when the court or opposing counsel discover the mistake (ER 3.3 – duty of candor to the tribunal).
Fifth, managerial lawyers must establish clear policies regarding the law firm’s permissible use of GAI, and supervisory lawyers must make reasonable efforts to ensure that the firm’s lawyers and nonlawyers comply with their professional obligations when using GAI. As law students become familiar with Lexis and Westlaw’s GAI, which will be provided to them free during law school, they will be tempted to view GAI as a reliable substitute for reading and understanding the statutes and cases relied upon in a brief. Lexis and Westlaw will be the first to tell you, they do not claim their GAI products have that capability. And even if they did the judge and the state bar will not care. Supervise your lawyers accordingly.
Finally, any fees charged by a firm are subject to ER 1.5 and therefore must be reasonable.
Formal Opinion 512 comes in at a breezy 15 pages, so check it out. If this is overwhelming to you, fear not. In 20 years when the robots have taken all our jobs, you will no longer have to worry about anything in this article or care what the ABA thinks.
About Joseph A. Brophy
Joseph Brophy is a partner with Jennings Haug Keleher McLeod in Phoenix. His practice focuses on professional responsibility, lawyer discipline, and complex civil litigation. He can be reached at jab@jkwlawyers.com.
The original article appeared in the June 2024 issue of Maricopa Lawyer and can be viewed here:
https://jkwlawyers.com/wp-content/uploads/2024/08/MARICOPA-LAWYER-SEPTEMBER-WEB.pdf
