Ethics Issues Arising From the Use of Generative Artificial Intelligence in the Practice of Law

Generative Artificial Intelligence ("AI") is here to stay. The real question for attorneys is whether using generative AI can better help the practice of law. That might mean practicing more efficiently, or that attorneys increase capacity to be able to serve more clients, or it could mean that the work product of attorneys improves as a result of the greater scope of information that’s considered as part of the legal analysis. One thing is for sure, though: if attorneys use generative AI, attorneys have to use it within the rules of professional conduct.

Therein lies part of the problem. The model rules of professional conduct were first adopted in 1983, before attorneys had access to the internet. Unfortunately, attorneys must use old rules to determine how one can ethically use this new technology. This isn’t the first—the legal profession has faced similar issues with multiple other technologies, including the telephone, email, ridesharing, cell phones, and cryptocurrency. In other ways, this technology has the potential to change the legal landscape.

Discussions will cover five issues that attorneys should consider when deciding whether to adopt generative AI in the practice of law: 

• Confidentiality (RPC 1.6)
• Competence (RPC 1.1)
• Oversight and Supervision (RPCs 5.1, 5.3)
• Unauthorized Practice of Law (RPC 5.5)
• Intellectual Property Issues

Learning Objectives:

• Identify risks arising from the use of generative AI that could result in rule violations, disciplinary complaints, and legal malpractice claims
• Devise strategies to minimize and manage those risks
• Comply with the Rules of Professional Conduct and related duties
• Create measures giving reasonable assurance that all lawyers and non-lawyers are in the firm conform to the Rules of Professional Conduct