Login | January 11, 2025
ABA issues first official opinion on generative AI
RICHARD WEINER
Technology for Lawyers
Published: January 10, 2025
In 2023, the American Bar Association formed a committee of experts to try to make sense of, and provide guidelines for the use of, generative artificial intelligence in the legal environment.
In late 2024, that committee published its first set of guidelines. As we know, these don’t have the force of law. However, they do provide ethical guidance, and violating these guidelines could create professional problems for noncompliant attorneys (and staff).
These guidelines seem of particular importance because of the seeming onslaught of horrible AI-plus-lawyers stories, as well as the fact that there are no national laws controlling AI usage or creation (the latter falling in line with the fact that there are virtually no national laws governing any sort of newer technology).
Competence––The guidelines don’t require a user-lawyer to have any technical competence in Generative AI per se, but they are requiring at least competence in understanding the capabilities and weaknesses of the GenAI tool (say, Char GPT) that they are using through training or self-study.
Read the horror stories before using.
Confidentiality—this is pretty easy. Do not use client names or other identifiers or discuss a case specifically enough to be identified without client consent. Anything you punch into an AI becomes part of its training and can be spit back out in answering someone else’s question. Please understand this before you use these things.
Communication—lawyers have to tell the clients when the lawyers (or staff) are using AI, even if informed consent isn’t required. Put an AI usage clause into the contract. Or, you know, don’t use it.
Hallucinations, etc. Check those citations. They may or not be accurate. It’s a violation to cite cases improperly to a court, and you can’t blame the AI. They just aren’t trained well enough in the law, plus most cases are behind paywalls that an AI can’t reach anyway. Do your own research, as they say.
Supervision—managerial lawyers are responsible for overseeing the use of GenAI.
Fees—and, finally, not you can’t charge clients for the time that you would have used but which AI saved you.
Thanks to Amy McClurg at Thomson Hine for the Lexology analysis.