🚨[LAWYERS & GENERATIVE AI]: The American Bar Association issued a formal opinion on the ethical use of generative AI by lawyers, and it's a MUST-READ for lawyers and everyone in AI governance. Quotes & comments:
"To competently use a GAI tool in a client representation, lawyers need not become GAI experts. Rather, lawyers must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use. This means that lawyers should either acquire a reasonable understanding of the benefits and risks of the GAI tools that they employ in their practices or draw on the expertise of others who can provide guidance about the relevant GAI tool’s capabilities and limitations. This is not a static undertaking. Given the fast-paced evolution of GAI tools, technological competence presupposes that lawyers remain vigilant about the tools’ benefits and risks. Although there is no single right way to keep up with GAI developments, lawyers should consider reading about GAI tools targeted at the legal profession, attending relevant continuing legal education programs, and, as noted above, consulting others who are proficient in GAI technology" (page 2-3)
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"Before lawyers input information relating to the representation of a client into a GAI tool, they must evaluate the risks that the information will be disclosed to or accessed by others outside the firm. Lawyers must also evaluate the risk that the information will be disclosed to or accessed by others inside the firm who will not adequately protect the information from improper disclosure or use because, for example, they are unaware of the source of the information and that it originated with a client of the firm. Because GAI tools now available differ in their ability to ensure that information relating to the representation is protected from impermissible disclosure and access, this risk analysis will be fact-driven and depend on the client, the matter, the task, and the GAI tool used to perform it." (page 6)
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"Of course, lawyers must disclose their GAI practices if asked by a client how they conducted their work, or whether GAI technologies were employed in doing so, or if the client expressly requires disclosure under the terms of the engagement agreement or the client’s outside counsel guidelines. There are also situations where Model Rule 1.4 requires lawyers to discuss their use of GAI tools unprompted by the client. For example, as discussed in the previous section, clients would need to be informed in advance, and to give informed consent, if the lawyer proposes to input information relating to the representation into the GAI tool.41 Lawyers must also consult clients when the use of a GAI tool is relevant to the basis or reasonableness of a lawyer’s fee" (page 8)
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"Lawyers using GAI tools have a duty of competence, including maintaining relevant technological competence, which requires an understanding of the evolving nature of GAI. In using GAI tools, lawyers also have other relevant ethical duties, such as those relating to confidentiality, communication with a client, meritorious claims and contentions, candor toward the tribunal, supervisory responsibilities regarding others in the law office using the technology and those outside the law office providing GAI services, and charging reasonable fees. With the ever-evolving use of technology by lawyers and courts, lawyers must be vigilant in complying with the Rules of Professional Conduct to ensure that lawyers are adhering to their ethical responsibilities and that clients are protected." (pages 14-15)
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➡️As the opinion makes clear, AI literacy is essential, especially for lawyers. In the EU AI Act, for example, AI literacy is a legal obligation (Article 4).
➡️In my opinion, most lawyers are unprepared at this point, and lack basic knowledge of how Generative AI works in practice, how AI is trained, limitations, risks, and so on, and using these tools in a professional capacity could be detrimental to clients.
➡️It's not a coincidence that some of the first Generative AI scandals involved lawyers using ChatGPT to write legal briefs (they used ChatGPT-generated fake cases and were fined).
➡️The use of general-purpose AI systems or any AI system not built with specific guardrails for lawyers should not be incentivized. The use of AI tools built for lawyers should be done with extreme care and under supervision.
➡️Read the full opinion by the @ABAesq below.
➡️If you are looking for AI training programs, make sure to check out our 4-week AI Bootcamps. They focus on AI risk, harms, compliance, and regulation and were attended by 850+ participants, many of them lawyers and compliance professionals (link below).
➡️To stay up to date with the latest developments in AI policy & regulation, join 30,500+ people who subscribe to my weekly newsletter (link below).
"To competently use a GAI tool in a client representation, lawyers need not become GAI experts. Rather, lawyers must have a reasonable understanding of the capabilities and limitations of the specific GAI technology that the lawyer might use. This means that lawyers should either acquire a reasonable understanding of the benefits and risks of the GAI tools that they employ in their practices or draw on the expertise of others who can provide guidance about the relevant GAI tool’s capabilities and limitations. This is not a static undertaking. Given the fast-paced evolution of GAI tools, technological competence presupposes that lawyers remain vigilant about the tools’ benefits and risks. Although there is no single right way to keep up with GAI developments, lawyers should consider reading about GAI tools targeted at the legal profession, attending relevant continuing legal education programs, and, as noted above, consulting others who are proficient in GAI technology" (page 2-3)
-
"Before lawyers input information relating to the representation of a client into a GAI tool, they must evaluate the risks that the information will be disclosed to or accessed by others outside the firm. Lawyers must also evaluate the risk that the information will be disclosed to or accessed by others inside the firm who will not adequately protect the information from improper disclosure or use because, for example, they are unaware of the source of the information and that it originated with a client of the firm. Because GAI tools now available differ in their ability to ensure that information relating to the representation is protected from impermissible disclosure and access, this risk analysis will be fact-driven and depend on the client, the matter, the task, and the GAI tool used to perform it." (page 6)
-
"Of course, lawyers must disclose their GAI practices if asked by a client how they conducted their work, or whether GAI technologies were employed in doing so, or if the client expressly requires disclosure under the terms of the engagement agreement or the client’s outside counsel guidelines. There are also situations where Model Rule 1.4 requires lawyers to discuss their use of GAI tools unprompted by the client. For example, as discussed in the previous section, clients would need to be informed in advance, and to give informed consent, if the lawyer proposes to input information relating to the representation into the GAI tool.41 Lawyers must also consult clients when the use of a GAI tool is relevant to the basis or reasonableness of a lawyer’s fee" (page 8)
-
"Lawyers using GAI tools have a duty of competence, including maintaining relevant technological competence, which requires an understanding of the evolving nature of GAI. In using GAI tools, lawyers also have other relevant ethical duties, such as those relating to confidentiality, communication with a client, meritorious claims and contentions, candor toward the tribunal, supervisory responsibilities regarding others in the law office using the technology and those outside the law office providing GAI services, and charging reasonable fees. With the ever-evolving use of technology by lawyers and courts, lawyers must be vigilant in complying with the Rules of Professional Conduct to ensure that lawyers are adhering to their ethical responsibilities and that clients are protected." (pages 14-15)
-
➡️As the opinion makes clear, AI literacy is essential, especially for lawyers. In the EU AI Act, for example, AI literacy is a legal obligation (Article 4).
➡️In my opinion, most lawyers are unprepared at this point, and lack basic knowledge of how Generative AI works in practice, how AI is trained, limitations, risks, and so on, and using these tools in a professional capacity could be detrimental to clients.
➡️It's not a coincidence that some of the first Generative AI scandals involved lawyers using ChatGPT to write legal briefs (they used ChatGPT-generated fake cases and were fined).
➡️The use of general-purpose AI systems or any AI system not built with specific guardrails for lawyers should not be incentivized. The use of AI tools built for lawyers should be done with extreme care and under supervision.
➡️Read the full opinion by the @ABAesq below.
➡️If you are looking for AI training programs, make sure to check out our 4-week AI Bootcamps. They focus on AI risk, harms, compliance, and regulation and were attended by 850+ participants, many of them lawyers and compliance professionals (link below).
➡️To stay up to date with the latest developments in AI policy & regulation, join 30,500+ people who subscribe to my weekly newsletter (link below).
➡️Read the American Bar Association's full opinion here:
➡️If you are looking for AI training programs, make sure to check out our 4-week AI Bootcamps:
➡️To stay up to date with the latest developments in AI policy & regulation, join 30,500+ people who subscribe to my weekly newsletter: americanbar.org/content/dam/ab…
aitechprivacy.com
luizasnewsletter.com
➡️If you are looking for AI training programs, make sure to check out our 4-week AI Bootcamps:
➡️To stay up to date with the latest developments in AI policy & regulation, join 30,500+ people who subscribe to my weekly newsletter: americanbar.org/content/dam/ab…
aitechprivacy.com
luizasnewsletter.com
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