From drafting intricate legal documents to performing exhaustive research, generative AI is steadily carving its niche in the legal world. The possibilities seem infinite, a mesmerizing symphony of code and law dancing together to create a more efficient, cost-effective legal practice.⁠

But with every new frontier comes uncharted territories and unseen challenges. As we entrust more tasks to this digital legal and business savant, questions around ethics, responsibility, and supervision bubble to the surface.

Is the implementation of generative AI simply a new flavor of outsourcing? How does this digital revolution reflect on our interpretation of the American Bar Association’s (ABA) ethical guidelines? How can we ensure that we maintain the sacrosanct standards of our profession as we step into this exciting future?

Here, I present a starting point to explore potential ethics considerations surrounding the use of generative AI.

💪🏻👀 Competence and Supervision

Understand and effectively apply AI: Are you comfortable using the AI tool and interpreting its output? Can you ensure the AI’s output aligns with the specifics of each case?

Supervision of AI: How closely are you checking the AI’s outputs? Are the AI’s data sources and processes reliable? Are you aware of the AI’s limitations and the risks of overreliance?

🔑🤐 Confidentiality and Security

Security of Client Data: Can your AI tool securely handle and store client data? How prepared are you for potential cybersecurity threats or data breaches?

Third-Party Data Sharing: Does your AI tool share data with third parties, like cloud providers? How are you ensuring that the third parties are maintaining confidentiality?

💬 📞 Communication

Client Understanding: Are you informing clients about the involvement of AI in their cases? Can you explain the associated risks without overwhelming them with technical details?

Transparency: How transparent are you being about your use of AI? Are you addressing any potential misconceptions about the role of AI in their case?

💰🤔 Fees and Reasonableness

Cost Transparency: Are the cost savings from AI being passed onto clients? If AI performs part of the legal work, are you charging the client at the same rate as personal legal service?

Fair Profiting: How are you balancing your right to profit against the duty to provide services at a reasonable cost?

🤝🚫 Conflict of Interest

Access to Diverse Data: Could your AI system potentially access data from both sides in a dispute? Are you taking precautions to ensure the AI system doesn’t inadvertently create a conflict of interest?

California’s Bar is actively working on some of these and other questions. The ABA Center for Innovation recently convened a group of experts to begin identifying and addressing such concerns. I am honored to be part of this preliminary explorative effort.

Would love to hear your thoughts and ideas on other ethical issues and/or ways to consider generative AI in these terms. Shoot me an email at [email protected].

Editor’s Note: This article is republished with permission of the author, and was included in his Brainyacts #80 alert, May 26, 2023.