TLIE Top Top: ABA Opinion 512 – Generative Artificial Intelligence Tools
TLIE Top TipsAlthough many lawyers have been using artificial intelligence in their practices for years, e.g., doc review and contract analysis, generative artificial intelligence (GAI) is becoming more mainstream in legal practices. If you’ve heard of “ChatGPT,” you’ve heard of GAI. The ABA Committee on Ethics and Professional Responsibility recently issued Opinion 512 to provide guidance on the use of GAI, which the ABA describes as having the ability to “create various types of new content, including text, images, audio, video, and software code in response to a user’s prompts and questions.” TLIE encourages a thorough review Opinion 512, which discusses lawyers’ duty of competence, confidentiality, communication, candor toward the tribunal, supervisory responsibilities, and fees, when using GAI.
The Communication section of Opinion 512 is of particular note. The ABA advises that depending on the circumstances, a lawyer may be required to disclose to a client the use of GAI in handling the client’s matter. Lawyers owe a duty of independent judgment, so anytime GAI may appear to influence that judgment, clients should be informed. An attorney’s use of GAI must also be disclosed 1) if the client asks whether GAI is being used in the representation; 2) where GAI’s use impacts the basis or reasonableness of fees; and 3) when GAI output will influence a significant decision in the representation. Importantly, if a client’s confidential information will be input into a GAI tool, lawyers must not only disclose that fact to the client but obtain the client’s informed consent before the GAI tool is used. A good general rule of thumb is, better to disclose the use of GAI than to not. Most of these disclosures can be made in the client representation agreement.
