Resources to help legal professionals to evaluate Generative AI tools.

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Last week I posted Generative AI and a Lawyer’s Duty of Confidentiality. I write today to touch upon another of the 7 Cs of Legal Ethics that is implicated when we use Generative AI: the duty of competence. More specifically, this post is meant to share resources that will help legal professionals to evaluate various generative AI tools and platforms.

Rule 1.1 of the Vermont Rules of Professional Conduct requires a lawyer to provide competent representation to a client. Per Comment [8], the duty of competence includes a duty to understand “the benefits and risks associated with relevant technology.”

In my opinion, Generative AI (GAI) is “relevant technology.” As such, a lawyer must understand its benefits and risks. Thus, a pertinent question is “Mike, how do I go about gaining that understanding?”  There are several ways.

I’m a big fan of D.C. Bar Ethics Opinion 388.  It addresses multiple professional responsibility issues associated with the use of GAI.  With respect to the duty to act competently to understand GAI’s risks and benefits, the opinion shares this guidance:

“Depending on the context, this might include the following questions and answers:

  • What is in the news about the GAI platform with respect to legal practice?
  • Has the GAI been tested for your intended purpose by disinterested third parties?
  • Have other legal professionals that you trust used the GAI? Have they encountered any issues?
  • Ask the GAI to do something you or a respected colleague or adversary has already done and compare its output with the human work product.10
  • Verify the accuracy and completeness (including any date limitations) of the GAI’s output in a test run, especially with respect to citations to laws, regulations and judicial decisions.”

I’m also a big fan of Catherine Reach’s work for the North Carolina Bar Association Center for Practice Management.  Last week, Catherine posted Free General Purpose Generative Artificial Intelligence Tools.[1] The post identifies some of the risks and benefits of several different GAI tools. Catherine concludes:

  • “By learning how to effectively use these tools, create clear and specific prompts, and understand their underlying capabilities and limitations, lawyers can use generative AI to streamline workflows, enhance productivity, and gain valuable insights. However, it’s essential to approach these tools with a critical eye, prioritizing ethical considerations and maintaining a steadfast commitment to protecting client confidentiality and providing accurate, well-reasoned legal advice and analysis.”

Finally, earlier this year, the New York State Bar Association’s Task Force on Artificial Intelligence released its Report & Recommendations. The report’s AI & Generative AI Guidelines remind lawyers that they “have a duty to understand the benefits, risks and ethical implications associated with the Tools, including their use for communication, advertising, research, legal writing and investigation.”  On this point, the report refers readers to Appendix B, which lists 23 different blogs, podcasts, newsletters, and subscriptions that provide insight and guidance on GAI.  Check ‘em out.

In 2016, the DC Bar addressed a lawyer’s use of social media in Ethics Opinion 371.  The opinion advised that:

  • “Because of society’s embrace of technology, a lawyer’s ignorance or disregard of it, including social media, presents a risk of ethical misconduct.”

Earlier this year, the DC Bar reached a similar conclusion in Ethics Opinion 388, stating:

  • “We hold the same view as to the use of GAI in legal practice.  Indeed, there may come a time when lawyers’ use of GAI is standard practice.”

In other words, when it comes to generative AI, choosing not to understand its risks and benefits is no longer an option.

As always, let’s be careful out there.

[1] Yes, “tools” plural.  Competence includes knowing that there’s more out there than just ChatGPT.

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