Breaking Down ABA Formal Opinion 512 on Generative AI Tools

On July 29, 2024, the ABA issued Formal Opinion 512, addressing the integration of generative artificial intelligence (GAI) tools into legal practice. This landmark opinion outlines the ethical considerations for lawyers leveraging these powerful new technologies. Here’s what you need to know to stay compliant and enhance your practice with GAI tools.

Generative AI Basics

Generative AI tools can create new content, including text, images, audio, video, and software code, in response to user prompts. Unlike traditional AI applications that analyze existing data, GAI tools generate new content by predicting statistically probable outputs based on vast datasets. They are already making waves in tasks such as legal research, contract analytics, document review, and document drafting.

Key Ethical Considerations

1. Competence (Model Rule 1.1): To use GAI tools competently, lawyers must understand their capabilities and limitations. While you don’t need to become a GAI expert, you should have a reasonable understanding of the benefits and risks associated with these tools. This involves continuous education and staying updated on technological advancements. Attending relevant CLE programs and consulting with tech experts can help maintain this competence. And, while GAI may be a starting point for a legal task, the opinion clarifies that it cannot be the end point: “lawyers may not abdicate their responsibilities by relying solely on a GAI tool to perform tasks that call for the exercise of professional judgment.”
2. Confidentiality (Model Rules 1.6, 1.9(c), and 1.18(b)): Client confidentiality is paramount. Before using GAI tools, evaluate the risks of disclosing or providing unauthorized access to client information both outside and inside your organization. Especially with self-learning GAI tools, ensure you obtain informed consent from clients before inputting sensitive data. Understand the terms of use and privacy policies of the GAI tools you employ, and consider consulting IT or cybersecurity professionals to safeguard client information.
3. Communication (Model Rule 1.4): Effective communication with clients about your use of GAI tools is crucial. You must disclose if these tools significantly influence your decisions or if your client expressly inquires about your methods. Incorporate discussions about usage and charges for GAI tools into your engagement agreements to manage expectations and maintain transparency.
4. Meritorious Claims and Candor Toward the Tribunal (Model Rules 3.1, 3.3, 8.4(c)): The opinion directs that “output from a GAI tool must be carefully reviewed to ensure that the assertions made to the court are not false.” Carefully review GAI-generated outputs to ensure accurate assertions of both fact and law. Misleading the court, even unintentionally, can have severe repercussions. The opinion also advises lawyers to consult local rules regarding GAI usage disclosure requirements, suggesting that the failure to do so could implicate Rule 3.4(c)’s obligation of fairness to opposing parties and counsel.
5. Supervisory Responsibilities (Model Rules 5.1 and 5.3): If you are in a managerial or supervisory role, the opinion expressly directs that you establish clear policies on the use of GAI tools. Ensure that all members of your firm, including nonlawyer assistants, are trained on the ethical use of these tools. This training should address “the basics of GAI technology, the capabilities and limitations of the tools, ethical issues in use of GAI[,] and best practices for secure data handling, privacy, and confidentiality.”
6. Fees (Model Rule 1.5): When billing clients for work involving GAI tools, ensure that fees are reasonable and reflect the actual time and direct costs incurred. The opinion provides the following example: “If a lawyer uses a GAI tool to draft a pleading and expends 15 minutes to input the relevant information into the GAI program, the lawyer may charge for the 15 minutes as well as for the time the lawyer expends to review the resulting draft for accuracy and completeness.” And, with respect to flat fees, “if using a GAI tool enables a lawyer to complete tasks much more quickly than without the tool, it may be unreasonable under Rule 1.5 for the lawyer to charge the same flat fee when using the GAI tool as when not using it.” Lawyers should not charge clients for time spent learning how to use these tools unless specifically agreed upon. Transparent communication about the basis of these fees is essential to maintain trust and compliance with ethical standards.

Embracing Technology Responsibly

The integration of GAI tools in legal practice offers unprecedented opportunities to enhance efficiency and quality. However, it also demands a heightened awareness of ethical obligations. By following the guidance in ABA Formal Opinion 512, lawyers can navigate this technological frontier responsibly, ensuring that their use of GAI tools benefits both their practice and their clients.

As we step into this new era, staying informed and adaptable is key. For more detailed guidance, refer to the full text of ABA Formal Opinion 512. And keep an eye out for ongoing educational opportunities and discussions within the legal community.