On 29th July 2024, the American Bar Association (ABA) weighed in for the first time on the ethical implications of generative AI (GenAI) use with the release of Formal Opinion 512. The 15-page document details, among other things, the current use of GenAI in the legal space, GenAI’s transformative potential, and some important advice on effectively and ethically utilising GenAI technology.

This ethics ruling is significant for a variety of reasons, but perhaps the most significant of them all is the fact that it legitimises GenAI in the legal space and signals to lawyers that it is okay to use provided they take a few ethical considerations into account. The document should serve as a handbook for understanding and navigating those ethical considerations with the caveat that the handbook will continue to be updated as the use and understanding of GenAI tools in the legal industry continues to evolve.

Key Takeaways from Formal Opinion 512

The ABA’s GenAI ethics ruling is not dissimilar from other artificial intelligence use guidelines released by various states in recent months. It offers insights on GenAI’s uses and ethical considerations, and some opinions on best practices when utilising the technology. Here are some key takeaways from the document:

• The document details current uses of GenAI and asks some significant questions it hopes to answer. Questions cover the level of competence, confidentiality, transparency, review, and supervision required of lawyers implementing AI.
• The ABA acknowledges the rapid pace at which GenAI and its various applications are evolving and anticipates updates to the document following any significant developments.
• Regarding competence, the document states “lawyers need not become [GenAI] experts. Rather, lawyers must have reasonable understanding of the capabilities and limitations of the specific [GenAI] technology that the lawyer might use.”
• Regarding confidentiality, the document states “Before lawyers input information relating to the representation of a client into a [GenAI] tool, they must evaluate the risks that the information will be disclosed to or accessed by others outside the firm.”
• Regarding communication, the document states “lawyers must disclose their [GenAI] practices if asked by a client how they conducted their work, or whether [GenAI] technologies were employed in doing so, or if the client expressly requires disclosure under the terms of the engagement agreement or the client’s outside counsel guidelines.”
• Regarding meritorious claims and contentions and candour toward the tribunal, the document states “Even an unintentional misstatement to a court can involve a misrepresentation…therefore, output from a [GenAI] tool must be carefully reviewed to ensure that the assertions made to the court are not false.”
• Regarding supervision, the document states “Managerial lawyers must establish clear policies regarding the law firm’s permissible use of [GenAI], and supervisory lawyers must take reasonable efforts to ensure that the firm’s lawyers and nonlawyers comply with their professional obligations when using [GenAI] tools.”

Navigating Ethical Issues When Implementing GenAI

Perhaps the most important considerations detailed in Formal Opinion 512 are those surrounding competence. All other ethical issues considered are closely related to the GenAI user’s understanding of how the technology works, how to effectively use it, and what its limitations are.

The document stresses that while ethically utilising GenAI does not require total mastery, lawyers should at least maintain a sound level of competence with the technology to both optimise its benefits and minimise any potential drawbacks. The ABA suggests that lawyers “may ordinarily achieve the requisite level of competency [with GenAI] by engaging in self-study, associating with another competent lawyer, or consulting with an individual who has sufficient expertise in the relevant field.” For anyone seeking expert advice on GenAI, working with a third-party service provider who specialises in the field can be a fantastic option.

Artificial intelligence is a highly complex topic that can be beyond the purview of many attorneys. Not only that, but the technology is constantly evolving at a rapid pace, meaning achieving competency with it is an ongoing journey rather than a single destination. Working with a third-party vendor when looking to implement GenAI can relieve some of the burdens associated with the duty of competency, ensuring that the technology is utilised effectively and ethically, and is understood intricately.

These vendors offer the services of AI industry experts who can provide law firms with GenAI software that has been rigorously tested and carefully honed to work exactly as advertised. Should the need arise to testify as to how GenAI tools were utilised in a given client case, these AI specialists also have the expertise to do so.

While working with industry experts does not mean lawyers should forego achieving competency with GenAI entirely, it can reduce some of the burden, allowing for quicker and easier implementation of GenAI tools, better utilisation of their various features, a significant reduction in risk, and greater peace of mind.

Conclusion

The ABA’s release of Formal Opinion 512 is a bellwether for the future of the legal industry. If one of the most significant and respected organisations in all the legal field finds it important to offer their opinions on a topic, it speaks to the significance and legitimacy of that topic. Formal Opinion 512 signifies that GenAI is here to stay and safe to use provided an adequate level of competency is achieved beforehand. Legal professionals would do well to study this technology on their own, but utilising third party services is a great way to ensure greater competency and insure against any potential ethical issues that may arise.