Although the Opinion is intended to assist lawyers with upholding their ethical and professional responsibility obligations when using generative AI in legal practice, the guidance is also instructive for the responsible use of generative AI outside of the legal profession.

If generative AI is used in litigation, lawyers’ ethical obligations also extend to the tribunal adjudicating the dispute. Model Rules 3.1, 3.3 and 8.4(c) on meritorious claims and contentions and candor toward a tribunal may apply:

Pursuant to Model Rule 1.1, lawyers must exercise the “legal knowledge, skill, thoroughness and preparation reasonably necessary” for competent representation, as well as to understand “the benefits and risks associated” with technologies used for legal services. Applied to generative AI, the Opinion provides:

Pursuant to Model Rule 1.5, lawyers must ensure that their fees and expenses are reasonable and that they communicate to their clients about the basis for fees and expenses charged. The Opinion notes that:

For legal and other professionals implementing AI risk management frameworks, one core challenge is ensuring continued vigilance as the technology continues to evolve and conventional expectations regarding the use of generative AI change over time. As the Opinion recognizes, generative AI is a “rapidly moving target” that “will continue to change in ways that may be difficult or impossible to anticipate.” To manage this particular risk, lawyers should consider:

Model Rules 5.1 and 5.3 require a law firm’s managerial and supervisory lawyers to create effective measures to ensure that all lawyers and nonlawyer assistants conform to the rules of professional conduct. The Opinion notes that:

On July 29, 2024, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (“ABA”) published Formal Opinion 512, providing guidance on the ethical use of generative AI tools by legal professionals (the “Opinion”). The Opinion is the latest of several similar ethical guidelines published by various state courts and bar ethics committees, including the September 2023 guidance from the Committee on Professional Responsibility and Conduct for the State Bar of California (“COPRAC”), the January 2024 Florida Bar Ethics Opinion 24-1, the January 2024 New Jersey Supreme Court Notice to the Bar, and the April 2024 Report and Recommendation of the New York State Bar Association Task Force on Artificial Intelligence. We have previously written about the COPRAC guidance and key takeaways for professional firms’ use of AI. To date, no state courts, bar ethics committees, or other advisory bodies on legal practice have chosen to amend or create new ethical rules for generative AI—instead, all such bodies have chosen to extend existing rules to use of this new technology.

Professionals considering whether and how to adopt generative AI into their practice should ensure that AI is used safely, appropriately, and efficiently. To effectively manage risks associated with generative AI use, professional firms should consider:

Erez is a litigation partner and a member of the Debevoise Data Strategy & Security Group. His practice focuses on advising major businesses on a wide range of complex, high-impact cyber-incident response matters and on data-related regulatory requirements. Erez can be reached at eliebermann@debevoise.com

The Opinion is divided into six parts, tracking different ethical considerations outlined in the ABA Model Rules of Professional Conduct.

Model Rule 1.6 requires lawyers to keep all information related to their representation of clients confidential, including by making reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, such information. Model Rules 1.9(c) and 1.18(b) extend similar protections to former and prospective clients. The Opinion recommends:

The Debevoise AI Regulatory Tracker (DART) is now available for clients to help them quickly assess and comply with their current and anticipated AI-related legal obligations, including municipal, state, federal, and international requirements.

Model Rule 1.4 addresses lawyers’ duty to communicate with their clients. Lawyers might be required to disclose use of generative AI to their clients in certain circumstances:

Avi Gesser is Co-Chair of the Debevoise Data Strategy & Security Group. His practice focuses on advising major companies on a wide range of cybersecurity, privacy and artificial intelligence matters. He can be reached at agesser@debevoise.com.