This week, the ABA released its first formal opinion covering the growing use of generative AI in the practice of law. To ensure clients are protected, the opinion mandates that lawyers using gen AI must “fully consider their applicable ethical obligations” including duties to provide competent legal representation, protect client information, communicate with clients, and charge reasonable fees.

Here are some excerpts from the opinion:

  • “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.”
  • “As GAI tools continue to develop and become more widely available, it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients.”
  • “But even in the absence of an expectation for lawyers to use GAI tools as a matter of course, lawyers should become aware of the GAI tools relevant to their work so that they can make an informed decision, as a matter of professional judgment, whether to avail themselves of these tools or to conduct their work by other means.”

Although several state bar associations have adopted guidelines on the ethical use of gen AI, the release of this long-awaited, much-needed opinion from the ABA is a big deal.  Forbes has a great article that explains what the hubbub is about – excerpts below:

Should lawyers be making use of generative AI? Yes, of course, they should be… The truth be told, any modern-day legal professional will be behind the times, missing the boat, and otherwise at a distinct and substantive disadvantage if they dare to watch haplessly as the rest of the legal industry adopts generative AI while they have their heads in the sand…

[But] those who wantonly adopt generative AI or do so for the sheer sake of proclaiming they are using AI, are setting themselves up for failure…

A rule of thumb is that adopting generative AI in the legal realm requires attentiveness, smarts, and a systematic methodological approach… Another way to say this is to invoke the Goldilocks principle. The porridge should not be too hot or too cold. It should be just right. When you implement generative AI, do so just right. Do not cram generative AI into every nook and corner out the gate, that’s the porridge is too hot. Do not test the water by some feeble usage that nobody in the law firm cares a dime about, that’s the porridge is too cold. Carefully identify the right circumstances and adopt them in the proper and right way…

Alright, what can be done about all this?

Perhaps the surest way to rivet the attention of busy lawyers is by having the true maker of the rules come out and pronounce what the rules are… Thus, a round of applause goes to the newly released ABA Formal Opinion 512. The sheriff has come to town and posted a stern, completely official warning poster for all to see. Ignore at your dire peril. Read it or weep.

Forbes goes on to unpack the 15-page opinion in the following areas: Competence, Confidentiality, Communication, Meritorious Claims and Contentions and Candor Toward the Tribunal, Supervisory Responsibilities, and Fees.

The ABA opinion underscores the importance of ongoing attorney education on generative AI. As the technology continues to evolve and integrate into legal work, staying informed about its ethical use and responsible implementation is more crucial than ever.

But don’t take Forbes word for it and don’t take mine.  Read the opinion and educate yourself.  As Forbes aptly notes, “Your law career might depend upon it.”

Not sure where to start? Talk to a law librarian. Chances are, these information professionals have already been thinking deeply about generative AI. At UW Law Library, our librarians have been teaching law students about the ethical and effective use of AI in legal practice since ChatGPT launched in Nov 2022. We’ve also reached out to the community through numerous presentations to attorneys, judges, librarians, educators, and the public.