On Friday December 8th, the European Union agreed to a historic deal creating the world’s first comprehensive laws regulating artificial intelligence. After 37 hours of negotiations among 100 people, the EU became the first government entity to enact AI legislation. The EU’s leap ahead of the US, China, and the UK in the race to protect the public from risks associated with the new technology is of great importance. For many in the legal field, however, the more pressing need seems to be ethical guidelines covering GAI and domain-specific AI in legal practice. Check back with the Trellis Law Blog for updates on the EU’s landmark decision. For now we will focus on the California State Bar Committee on Professional Responsibility and Conduct, which published ethics guidelines on using Generative AI (GAI) in November.
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California State Bar AI Ethics Guidelines
On November 16, 2023, the California State Bar published a roadmap for the ethical use of generative artificial intelligence (GAI). The guidelines are five pages long and guide attorneys who want to incorporate AI into their legal practice while complying with the Rules of Professional Conduct. The guidance “does not carry the weight of a formal ethics opinion or an amendment to the professional conduct rules. But it can be cited in a disciplinary case against an attorney accused of wrongdoing in conjunction with the use of AI.”
The guidelines discuss the following main points:
1. Confidentiality
This rule acknowledges that AI systems utilize input information, including prompts and documentation, to train AI, and it’s a lawyer’s duty not to input confidential client information into any GAI system that lacks adequate confidentially and security protection. Lawyers must anonymize client information and avoid entering details used to identify the client.
2. Competence
This rule acknowledges that GAI output sometimes includes false, inaccurate, and biased information. A lawyer must ensure competent use of the technology, apply diligence concerning facts and law, and understand the benefits and risks associated with using AI.
3. Compliance and Supervision of Nonlawyers
These rules imply that lawyers have a duty to comply with the law and understand the relevant and applicable legal issues surrounding GAI, such as privacy laws, data transfer laws, intellectual property laws, and cybersecurity concerns. Lawyers are also responsible for subordinates’ use of GAI in ensuring that they are using it in compliance with a lawyer’s professional responsibility and obligations.
4. Communication
This rule imposes a duty on lawyers to evaluate their communication obligations throughout client representation regarding GAI. Lawyers should consider disclosing the intended use of AI in representation, including how the technology will be used and its associated benefits and risks.
5. Charging for Work Produced by AI
Under this rule, a lawyer may use GAI to create work product more efficiently and charge for time spent crafting or refining GAI inputs and prompts or reviewing and editing GAI outputs. Lawyers must not charge hourly fees for time saved by using GAI, but costs associated with GAI may be charged to the clients in compliance with applicable law. This rule suggests implementing a fee agreement explaining the basis for all fees and costs, including those associated with using GAI.
6. Candor to the Tribunal
A lawyer must review all GAI output, including, but not limited to, analysis and citations to authority for accuracy before submission to the court, and correct any errors or misleading statements made to the court. Lawyers should also check for rules and requirements in the relevant jurisdiction that may necessitate the disclosure of the use of GAI.
7. Prohibition on Discrimination
Finally, this rule acknowledges that some GAI are trained on biased information, and it is the lawyer’s responsibility to be aware of possible biases and the risks they create when using GAI (for example, to screen potential clients or employees). Lawyers should continuously learn about AI biases and their implications in legal practice and implement mechanisms to identify, report, and address potential AI biases.
Key Takeaway
The overall message of the guidelines is to protect clients from the harmful risks associated with GAI and to ensure that lawyers follow their ethical responsibilities. The California Bar’s guidance is intended as a first step in developing regulations on AI use in law. The main takeaway of the guidelines is to provide best practices for lawyers using GAI to ensure their client information remains confidential, they are competent in using the technology, and they are billing and disclosing the use of GAI appropriately. California has taken a necessary first step as AI becomes a “resource for lawyers to represent the clients competently and efficiently.” As AI technology continues to advance, it is paramount that lawyers maintain their ethical obligations in legal practice.
Moving Forward: AI Disclosure and Billing
The development of GAI will significantly impact how lawyers do their work and bill for their time. The guidelines suggest that lawyers disclose to their clients when incorporating AI into their legal workflow and provide a fee agreement outlining the basis of fees associated with AI. However, even as state bars formulate AI guidelines, law firms are weary of disclosing the AI tools they are using. Some lawyers believe it’s more important to disclose to a client that AI is being used and what information is being fed into the research tool instead of what tool is being used. Others believe disclosing AI “isn’t necessarily a bad thing, and it may be prudent during this interim phase, while we’re all getting used to this new transformed world with new tools.”
Overall, the disclosure question may become less relevant as AI continues to integrate into already existing technology. Some believe there will come a point where almost all technology is at least somewhat influenced by AI. Currently, firms are letting clients take the lead and using engagement letters to manage client expectations “on disclosure to dictate conversations about AI’s use.” Most agree that disclosure in some capacity is necessary, and firms should spell out their AI policies so that clients are aware and informed of the risks and benefits of AI.
Regarding billing, the legal community has been calling for a revamp of the billing system for years. AI will undoubtedly make legal practice more efficient, but the output quality remains dependent on lawyer oversight. Even with advancing technology, nuances in law remain unchanged, and human decision-making remains paramount. How AI impacts legal billing will remain a topic of debate for the foreseeable future, and it will be interesting to see how the law develops around this technology as it pertains to client fees.
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Sources:
https://thedailyrecord.com/2023/12/10/california-ethics-committee-weighs-in-on-ai/
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