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.