Do we need to amend the Rules of Professional Conduct in response to the legal profession’s embrace of AI? In my opinion, no.

Michael 2 Comments

Last month, the D.C. Bar issued Ethics Opinion 388: Attorneys’ Use of Generative Artificial Intelligence in Client Matters.  It’s an interesting, helpful, and easy-to-follow opinion that is well-worth the few minutes it takes to read.  The opinion highlights the Rules of Professional Conduct most likely implicated by a legal professional’s use of generative AI (GAI):

  • Competence,
  • Confidentiality,
  • Reasonable Fees,
  • Candor to a Tribunal,
  • Fairness to an Opposing Party,
  • A Lawyer’s Obligations as a Supervisor, and
  • The Duty to Maintain & Produce the Client’s File.

I am NOT going to address GAI’s impact on those duties in this post.  Read the opinion.

Rather, I post today because I’m especially of fan of what the DC opinion does not include: any suggestion that GAI’s emergence requires changes to the Rules of Professional Conduct. In avoiding such a suggestion, the opinion follows a path traveled by many prior opinions.

Technology evolves. Always has, likely always will.

Within the legal profession, each stage of technological evolution results in calls to change the Rules of Professional Conduct to adapt to the latest “new thing.” It happened with the introduction of telephones, fax machines, floppy discs, cell phones, email, cloud storage, and the profession’s embrace of electronic transmission & storage of confidential information. It’s happening again with GAI.

Don’t worry about the rules – they’re fine and well-equipped to respond to whatever technology arrives next.

For example, Rule 1.1 requires a lawyer to provide competent representation to clients.  The duty includes understanding the risks & benefits of relevant technology.  GAI is relevant technology.  Thus, the duty of competence includes understanding its risk & benefits. 

Or consider Rule 1.6(a):

  • “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is required by paragraph (b) or permitted by paragraph (c).”

The rule is clear.  Don’t reveal client information unless authorized to do so!

I’ve harped on this larger point for years. Most notably in this post in which I argued that the reasonable precautions that a lawyer must take before storing client information in the cloud aren’t much  different than the reasonable precautions that a lawyer must take before storing paper files in a unit at a store-all facility.

I could go on, making the same argument with respect to other rules. But I tend to get too simplistic. So, I’ll share what others have stated.

  • “Many of the risks posed by AI are more sophisticated versions of problems that already exist and are already addressed by court rules, professional conduct rules and other law and regulations.”[1]
  • Referring to court orders & rules adopted in response to concerns over lawyers’ use of GAI, “few . . . govern behaviors that are not already addressed by existing rules of professional responsibility.”[2]
  • “Advances in technology have greatly improved the ways in which lawyers provide legal services. What technology has not done is alter lawyers’ fundamental ethical obligations, and specifically, the duties lawyers owe to their clients—and to the courts.”[3]
  • “Like any technology, generative AI must be used in a manner that conforms to a lawyer’s professional responsibility obligations, including those set forth in the Rules of Professional Conduct and the State Bar Act.”[4]
  • “In sum, a lawyer may ethically utilize generative AI technologies but only to the extent that the lawyer can reasonably guarantee compliance with the lawyer’s ethical obligations.”[5]

Yes, one of these days I’ll share thoughts on the duties & rules most likely to raise questions about the proper use of GAI. For now, I remain of the opinion that the current rules are more than capable of responding to professional misconduct when using GAI. I’m willing to be convinced otherwise.

However, as I’ve argued with social media, when it comes to lawyer misconduct, it’s usually not the technology that’s the problem.

As always, let’s be careful out there.

[1] Report & Recommendations of the New York State Bar Association’s Task Force on Artificial Intelligence, p. 53.

[2] Responsible AI in Legal Services, Resources: AI Orders

[3] DC Bar, Ethics Opinion 388 (April 2024)

[4] The State Bar of California, Standing Committee on Professional Responsibility and Conduct, Practical Guidance For The Use Of Generative Artificial Intelligence In The Practice Of Law, Executive Summary

[5] Florida Bar Ethics Opinion 24-1 (January 19, 2024)

Related Posts

2 thoughts on “Do we need to amend the Rules of Professional Conduct in response to the legal profession’s embrace of AI? In my opinion, no.”

Leave a comment