Dive Brief:
- Lawyers should consider using AI to the extent it increases their effectiveness, but don’t use it without giving clients the chance to make an informed decision about whether they’re OK with it, a New York State Bar Association task force says in proposed additions to the association’s rules of professional conduct.
- “A.I. tools … offer us the ability to focus more on creative and practical endeavors, [but] they present a comprehensive set of ethical challenges that we are just beginning to fully comprehend,” NYSBA President Richard Lewis says in a letter to the association.
- NYSBA last week released a 90-page AI task force report that includes recommended guidance on how lawyers should incorporate the technology, including generative AI tools, into their work. The task force is asking the association to incorporate the guidance into its rules of professional conduct as part of its recommendations.
Dive Insight:
Given their obligation to practice competently, lawyers are advised to take the time to understand AI.
“Keeping abreast of ‘the benefits and risks associated with technology [that’s deployed] to provide services to clients’ is an element of competency,” says the report, quoting from the association’s rules.
There’s a gap in use of the tech right now, the report says. Only 43% of attorneys in a LexisNexis survey say they use, or plan to use, AI tools as part of their work.
If you use the technology, the report says, you have to let your clients know and give them a chance to decide if they want it to play a role in the work you do for them; it’s their data that’s at risk of exposure if it gets inputted into an AI tool and makes its way into the broader corpus that large AI language models use to train on.
The report references a California bar rule that requires lawyers to disclose their use of AI and a Florida bar rule that goes further than that by requiring written client consent.
“Whether an attorney informs the client or obtains formal consent, the ethical obligation to protect client data remains unchanged,” the report says.
Even if a client gives informed consent, you mustn’t knowingly reveal confidential information, the report says. “You must take precautions to protect sensitive client data and ensure that no [AI tool] compromises confidentiality. You should obtain assurance that the tool provider will protect your client’s confidential information.”
Confidentiality concerns aren’t just about privacy; they’re about the attorney-client privilege, too. “Privileged information or attorney-work product [can] be revealed when directly and indirectly using generative AI tools,” the report says.
Other staff
If you supervise other attorneys or non-attorney support staff, you’re responsible for making sure they abide by privacy rules in their use of AI tools, and if you’re an attorney being handed AI work from another that isn’t protecting client data, your responsibility is to confidentiality. “You are independently required to observe the ethical rules,” the report says.
If you use AI, you’re responsible for the content it generates. “You should refrain from relying exclusively on [AI tools] or the output derived from them when providing legal advice and maintain your independent judgment on a matter,” the report says.
There's nothing wrong with building use of AI into your fee structure, including as a surcharge, but you have to disclose that, the report says.
“If the [AI tools] would make your work on behalf of a client substantially more efficient, then your use of (or failure to use) such tools may be considered as a factor in determining whether the fees you charged for a given task or matter were reasonable,” the report says. “If you will add a ‘surcharge’ (i.e., an amount above actual cost) when using specific tools, then you should clearly state such charges in your engagement letter, provided that the total charge remains reasonable.”
The task force is asking the bar association to adopt the AI guidance and to commission a standing section to keep it updated.
