States Publish Guidance on Use of Lawyers’ Use of Generative AI

The use of generative AI in the legal profession is here to stay. Generative AI is being used by lawyers for a variety of tasks such as legal research, analyzing and synthesizing factual information, explaining new legal concepts, writing emails, and drafting contracts and legal briefs. There are many benefits to utilizing generative AI in the legal profession. Generative AI allows lawyers to save time and redirect their energy to higher-priority tasks. However, there are also potential disadvantages of using generative AI at work, including concerns about plagiarism, providing factually incorrect information, and privacy issues. The States of California and Florida recently released helpful guidelines and guidance for lawyers utilizing AI in their practice. Here are the main takeaways.

California: Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law

On November 16, 2023, the State Bar of California introduced a document titled “Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law.” The guidance addresses the following duties and obligations of lawyers.

Duty of Confidentiality. Do not put confidential client information into the AI system. If the lawyer must put client information into the system, anonymize client information and avoid entering details that can be used to identify the client.
Duties of Competence and Diligence. Understand how the AI system works, what the system can do, and what the system cannot do. Do not over rely on the AI system. A lawyer must critically review, validate, and correct both the input and the output of generative AI to ensure the content accurately reflects and supports the interests and priorities of the client in the matter at hand, including as part of advocacy for the client.
Duty to Supervise Lawyers and Non-Lawyers. Adopt and implement internal firm policies on the use of generative AI by lawyers and nonlawyers within the firm. These policies should ensure that the firm’s lawyers and non-lawyers’ conduct complied with their professional obligations when using generative AI.
Communication. Tell your client that you are utilizing generative AI in the representation. This includes explaining to the client how the AI system will be used, as well as the benefits and risks of such use. Lawyers should also review any client instructions or policies that may restrict or limit the use of generative AI.
Billing. A lawyer may use generative AI to more efficiently create work product and may charge for actual time spent (e.g., crafting or refining generative AI inputs and prompts, or reviewing and editing generative AI outputs). A lawyer must not charge hourly fees for the time saved by using generative AI. Costs associated with generative AI may be charged to the clients in compliance with applicable law. A fee agreement should explain the basis for all fees and costs, including those associated with the use of generative AI.
Candor to the Tribunal. A lawyer must review all generative AI outputs, including, but not limited to, analysis and citations to authority for accuracy before submission to the court, and correct any errors or misleading statements made to the court. A lawyer should also check for any rules, orders, or other requirements in the relevant jurisdiction that may necessitate the disclosure of the use of generative AI.

Florida Bar Ethics Opinion 24-1

On January 19, 2024, the Florida Bar adopted ethics opinion 24-01 guiding lawyers’ use of generative artificial intelligence. The guidance addresses the following duties and obligations of lawyers.

Confidentiality. Lawyers should obtain their client’s informed consent prior to utilizing a third-party generative AI program if the use would involve the disclosure of any confidential information. Lawyers must ensure that the lawyer utilizing the AI program sufficiently understands the technology, including whether the program is “self-learning.” This is because a “self-learning” program develops its responses as it receives additional information and raises the possibility that the client’s information may be stored within the system and used to respond to future inquiries. Lawyers should adopt reasonable precautions to avoid the inadvertent disclosure of confidential information and refrain from attempting to access information previously provided to the generative AI by other lawyers.

Supervision. Lawyers who rely on AI for research, drafting, communication, and client intake must make reasonable efforts to ensure that the law firm has policies in place to reasonably assure that the conduct of the AI system is compatible with the lawyers’ own professional obligations. Always review the work product of a generative AI system. This includes verifying the accuracy and sufficiency of all research performed by the generative AI. Lawyers must not delegate tasks to the generative AI program which could constitute the practice of law. This includes the negotiation of claims or any other task that requires a lawyer’s personal judgment and participation. If the lawyer utilizes generative AI or a chatbot for client intake, the lawyer should not use an overly welcoming chatbot that may provide legal advice, fail to immediately identify itself as a non-lawyer chatbot, or fail to include clear and understandable disclaimers limiting the lawyer’s obligations.

Legal Fees and Costs. The lawyer may only charge the client for the actual costs incurred on behalf of the individual client. The lawyer also may not duplicate charges that are already accounted for in the lawyer’s overhead. The lawyer may not falsely inflate the amount of time spent on a matter. Lawyers who will heavily rely on generative AI in their cases may consider utilizing contingent fee agreements or flat fee billing to capture the benefits of increased efficiency. In a contingent fee case, lawyers should not charge the client separately for the cost or use of AI when that work would usually be accomplished by the client’s own lawyer and incorporated into the standard fee paid to the lawyer. This is true even if that cost is paid to a third-party provider. The lawyer must inform the client in writing of the lawyer’s intent to charge the client the actual cost of using generative AI. The charges must be reasonable and non-duplicative. “If a lawyer is unable to determine the actual cost associated with a particular client’s matter, the lawyer may not ethically prorate the periodic charges of the generative Ai and instead should account for those charges as overhead.” Finally, the lawyer should not charge the client for the time spent developing a minimal competence in the use of generative AI.

Legal Advertising. Lawyers utilizing chatbots for advertising and client intake must inform prospective clients that they are communicating with an AI program and not with a lawyer or firm employee. The lawyer should consider utilizing screening questions for the chatbot to limit the chatbot’s communications if a person is already represented by counsel.

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