Articles are provided regularly by LACBA’s longstanding Professional Responsibility and Ethics Committee. 

By Robert K. Sall

Sall practices with Sall Spencer Callas & Krueger ALC in Laguna Beach, and serves on the Professional Responsibility and Ethics Committee of the Los Angeles County Bar Association. Mr. Sall is a Certified Specialist in Legal Malpractice by the Board of Legal Specialization of the State Bar of California. The opinions expressed are his own.

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Hardly a day passes without a publication in the trade press on the burgeoning use of artificial intelligence (“AI”) in the legal profession. New terms have evolved in our legal lexicon such as AI hallucination, AI bias, and generative AI. According to Burton’s Legal Thesaurus, by William C. Burton, a resource now in its fourth edition, the term “generative AI” refers to “computer software that generates new content, such as text, code or images.” As the use of AI becomes commonplace in the legal industry it raises ethical concerns. Will there be regulation coming down the pike regarding the ethical use of AI technologies? To some extent, it already exists. On November 16, 2023, the California State Bar’s Board of Trustees adopted recommendations of the Standing Committee on Professional Responsibility and Conduct in its Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law (the “AI Guidance”). This guidance now available on the California State Bar’s website.

The rules of professional conduct already mandate familiarity with the use of technology in the competent practice of law. Adopted February 18, 2021, comment [1] to Rule 1.1 (Competence), states: “The duties set forth in the rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.”

The recently published AI Guidance describes procedures for the use of generative AI in a manner that conforms to our professional responsibility obligations. Among the unique challenges presented by generative AI are the lack of clarity as to how it works, and “the risk of encouraging greater reliance and trust on its outputs because of its purpose to generate responses and its ability to do so in a manner that projects confidence and effectively emulates human responses.” The AI Guidance cautions that lawyers consider these risks before using generative AI to provide legal services.

Ethical rules are typically mandatory, written from the perspective that a lawyer shall or must comply with a given requirement or shall not engage in specified conduct. The AI Guidance does not create enforceable rules but directs our attention to existing rules that are implicated in the use of generative AI.  “This Practical Guidance should be read as guiding principles rather than as ‘best practices.’” Lawyers are cautioned, however, in areas where the use of generative AI may be governed by applicable provisions of the rules of professional conduct or the State Bar Act (Bus. & Prof. Code §§ 6000-6243). The following extracts some of the applicable ethical considerations offered in the AI Guidance:

Duties of Confidentiality: Bus. & Prof. Code § 6068, subd. (e), Rule 1.6 and Rule 1.8.2: AI tools may lack reasonable or adequate security. The AI Guidance cautions that responding to prompts and uploading documents or resources to train the AI tool may result in confidential information being shared with third parties or used for purposes other than those intended. Accordingly, a lawyer should consult with IT professionals having expertise in cybersecurity to ensure that the AI system adheres to stringent security, confidentiality, and data retention protocols regarding confidential client information. Lawyers are cautioned not to input any confidential information without confirming these confidentiality and security protections, and that information should be anonymized to avoid entering data that could be used by others to identify the client.  

Duties of Competence and Diligence: Rule 1.1, Rule 1.3: Lawyers may be exposed to discipline and/or sanctions resulting from the use of generative AI that produces false, inaccurate, or biased output. Before using generative AI, the lawyer should understand to a reasonable extent how it works, its limitations, terms of use and policies to avoid the use and exploitation of client data. Lawyers are cautioned that overreliance upon AI tools is inconsistent with the application of trained judgment in the practice of law. The Guidance states that AI-generated outputs can be used as a starting point but should be scrutinized for accuracy and bias, and critically analyzed, as well as supplemented by the lawyer’s own research, validation, and professional judgment, which cannot be delegated to generative AI.

Duty to Comply with the Law: Bus. & Prof. Code § 6068, subd. (a), Rule 8.4 and Rule 1.2.1: Lawyers must comply with the law and cannot counsel a client to engage in, or assist a client, in conduct the lawyer knows is a violation of any law, rule or ruling. The output of generative AI must be carefully analyzed to avoid such a violation.

Duty to Supervise Lawyers and Nonlawyers, Responsibilities of Subordinate Lawyers: Rule 5.1, Rule 5.2, and Rule 5.3: Managerial and supervisory lawyers have an obligation to make reasonable efforts to ensure that subordinate lawyers and non-lawyer personnel comply with their professional obligations when using generative AI. The AI Guidance suggests that lawyers in a managerial or supervisory capacity should establish clear policies to ensure adequate training and compliance with ethical obligations in any generative AI use.

Communication Regarding Generative AI Use: Rule 1.4 and Rule 1.2: Lawyers should consider their duties of communication with clients regarding the novelty of AI technology, how it will be used, and its benefit and risks. Because generative AI output may contain false or misleading legal authority, lawyers may wish to confer with the client regarding applicable instructions or guidelines that limit its use.

Charging for Work Produced by Generative AI and Generative AI Costs: Bus. & Prof. Code §§ 6147-6148, Rule 1.5: While the reasonable costs for use of AI technology may be charged to clients in accord with applicable law, the AI Guidance cautions against charging hourly fees based upon the time saved. It recommends that the fees and charges for AI costs be explained in the fee agreement.

Candor to the Tribunal and Meritorious Claims and Contentions: Rule 3.1, Rule 3.3: The AI Guidance cautions that all AI output must be reviewed, analyzed, and checked for accuracy of citations to authority before submission to a court, and that corrections be made to any errors or misleading statements.

Prohibition on Discrimination, Harassment, and Retaliation: Rule 8.4.1: Lawyers are cautioned that some generative AI may be trained on biased information, and that output must be scrutinized for potential biases and their implications. It recommends that procedures be established to identify, report, and address potential AI biases.

It has become clear that generative AI is going to change the way we practice law. As with all new and evolving technology, let’s be careful out there!