Published: New Hampshire Bar News
March 20, 2024
Since its launch on November 30, 2022, OpenAI’s ChatGPT has
brought generative artificial intelligence (“AI”) into
the mainstream. Unlike traditional computer software, which
operates within the confines of specific rules and instructions
written by programmers, generative AI utilizes machine learning
models to analyze data, adapt, and generate novel content.
Businesses have swiftly embraced generative AI, hoping to leverage
this nascent technology to increase efficiency. The use of
generative AI by attorneys, however, raises important ethical
questions.
There remains a dearth of guidance on lawyers’ ethical use
of generative AI. A recent ethics opinion from the Florida Bar,
though, may serve as a harbinger for how state bar associations
will apply ethical rules to this new technology.
In January, the Florida Bar’s Board Review Committee on
Professional Ethics issued an opinion centered on Florida
lawyers’ use of generative AI (Florida Bar Ethics Op. 24-1
(Jan. 19, 2024)). As the opinion states, generative AI can
“dramatically improve the efficiency of a lawyer’s
practice” by assisting with a host of tasks, including legal
research, analyzing data, and document drafting. Fla. Bar Eth. Op.
24-1, at 2. The integration of this novel technology with the
practice of law, however, raises several ethical questions.
Well-publicized instances of attorneys filing ChatGPT-authored
documents containing inaccuracies and non-existent citations
highlight the need for ethical guardrails. Although Mata v.
Avianca, Inc., in which the United States District Court for
the Southern District of New York sanctioned an attorney in June
2023 for relying on ChatGPT to generate legal research, received
much attention, it has not prevented other lawyers from
inappropriately relying on generative AI. In February 2024, for
example, a Massachusetts judge sanctioned an attorney for filing
memoranda of law that cited fictitious cases after relying on
generative AI. The Florida Bar’s recent opinion follows a
similar action taken by the California Bar to address such
behavior. In November 2023, the California Bar issued
“Practical Guidance for the Use of Generative Artificial
Intelligence in the Practice of Law.” As many as six other
states are currently reviewing the ethical implications of AI use
in the practice of law.
The Florida Bar Opinion
The Florida Bar opinion raises several ethical considerations
regarding attorneys’ use of generative AI. While the opinion is
specific to the Rules Regulating the Florida Bar, every U.S.
jurisdiction has adopted rules of professional conduct based upon
the American Bar Association Model Rules of Professional Conduct.
New Hampshire’s Rules of Professional Conduct closely mirror
those of Florida.
Confidentiality and Data Protection
Florida Rule 4-1.6 (like New Hampshire Rule 1.6) provides that
attorneys may not disclose any “information relating to the
representation of a client,” unless the disclosure is
impliedly authorized or the client consents to disclosure. Lawyers
employing generative AI must continue to safeguard the
confidentiality of client information. This involves understanding
the AI program’s policies on data retention, sharing, and
self-learning. If a lawyer intends to share confidential client
information with an AI program, this creates a risk that such
information can be retained by the program and disclosed to third
parties. The opinion states, “it is recommended that a lawyer
obtain the affected client’s informed consent prior to
utilizing a third-party generative AI program if the utilization
would involve the disclosure of any confidential information.”
Id.
Oversight of Generative AI Content
Florida Rules 4-5.1 and 4-5.3 (like New Hampshire Rules 5.1 and
5.3) require lawyers to supervise lawyers and other staff whom they
manage to ensure compliance with the ethical rules. The opinion
states, “[J]ust as a lawyer must make reasonable efforts to
ensure that a law firm has policies to reasonably assure that the
conduct of a nonlawyer assistant is compatible with the
lawyer’s own professional obligations, a lawyer must do the
same for generative AI.” Id. at 4.
Generative AI can, and does, produce inaccurate content (a
phenomenon referred to as “hallucinating”). Lawyers,
therefore, must ensure that they review AI-generated work-product
in the same way they review the work-product of nonlawyer
assistants, verifying accuracy and sufficiency. As the opinion
states, “The failure to do so can lead to violations of the
lawyer’s duties of competence, avoidance of frivolous claims
and contentions, candor to the tribunal, and truthfulness to
others.” Id.
Billing Practices
Florida Rule 4-1.5 (like New Hampshire Rule 1.5) prohibits
attorneys from charging unreasonable or clearly excessive fees.
Generative AI’s efficiency should not lead to improper billing
practices. Lawyers should transparently communicate fees to clients
and avoid double-billing. The opinion states, “Though
generative AI programs may make a lawyer’s work more efficient,
this increase in efficiency must not result in falsely inflated
claims of time.” Id. at 6. The traditional hourly
billing system may cause misalignment of lawyer and client
incentives. While AI can reduce the hours needed to accomplish a
given task, this can decrease the amount of billable work for the
lawyer. The opinion states, “lawyers may want to consider
adopting contingent fee arrangements or flat billing rates for
specific services so that the benefits of increased efficiency
accrue to the lawyer and client alike.” Id.
Advertising and Client Interaction
Florida Rule 4-7.13 (like New Hampshire Rule 7.1) prohibits
lawyers from making false or misleading statements about the
lawyer’s services. Law firms are increasingly using AI chatbots
on their websites to communicate with potential clients. Lawyers
must ensure that any information provided is accurate. Furthermore,
the opinion provides that potential clients must be made aware that
they are communicating with AI and recommends that lawyers
“consider including screening questions that limit the
chatbot’s communications if a person is already represented by
another lawyer.” Id. at 7. Finally, the opinion warns
lawyers of the risk of the unintentional creation of an
attorney-client relationship resulting from potential client
communications with AI chatbots.
Lawyers may leverage generative AI in their practice, but
compliance with ethical obligations remains necessary. As
generative AI continues to evolve, lawyers must stay informed,
adapt, and ensure their practices comply with the ethical standards
of their state bar association.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
#Florida #Bar #Guidance #Lawyers #Generative #Technology
