By Rachelle Cohen

Cohen is a principal at Valensi Rose, PLC in Los Angeles, a former member of the California Lawyers Association Ethics Committee, and a member and former Chair of the LACBA’s longstanding Professional Responsibility and Ethics Committee, which regularly provides ethics articles. The views expressed are her own.

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In an article posted in this publication on September 5, 2025 (Artificial Intelligence Goes to Court - Update - Monthly Member Newsletter), John Amberg gave a compelling account of missteps lawyers have made in using and relying on artificial intelligence (AI) in litigation. From briefs submitted with fake case citations to incorrect quotations of cases, the cases cited by Amberg show the results when lawyers rely on AI tools without necessary lawyer participation. As he put it: “AI is not a substitute for a lawyer’s critical thinking skills and judgment.”

Likewise, in a December 30, 2025 article posted in this monthly publication (Ethical Pitfalls of Generative AI - Update - Monthly Member Newsletter), Edward J. McIntyre noted the surprising number of judicial decisions (770 as of December 23, 2025) in which case materials included AI-generated hallucinations. He provided a detailed analysis of the Rules of Professional Conduct that are implicated when a lawyer uses AI-fabricated material in court filings. For more on the ethical rules implicated with the use of AI, see also American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility, Formal Opinion 512, “Generative Artificial Intelligence Tools” (July 29, 2024) (“ABA Op. 512”) and The State Bar of California, Committee on Professional Responsibility and Conduct, Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law (Nov. 16, 2023)  (the “CA Guidance on AI”).

These articles approach AI from a cautionary viewpoint. Clearly, the early adopters of this technology have learned and continue to learn lessons that are valuable to all attorneys in understanding that the technology, like those of the past, cannot replace the lawyer’s judgment.

However, as lawyers continue to explore AI and with the incredible pace of AI technological development, we likely are entering a changing era for information gathering, analysis and research. This raises the question of whether lawyers need to become familiar with AI to be compliant with the ethical rules, as a tool for the lawyer to use, to supervise staff properly, and to advise clients who use AI tools.

Will Lawyers Need to Use AI Tools?

As McIntyre and Amberg both noted in their articles, Rule 1.1, Comment [1] provides that the duties stated in our competence obligation include “the duty to keep abreast of the changes in law and its practice, including the benefits and risks associated with relevant technology.” References in this article to a Rule are to the California Rule of Professional Conduct.

The California State Bar Ethics Op. 2020-203 delves into what it means to keep abreast of technology in the context of electronically stored information. This opinion, which provided examples of lawyers who lost devices or were hacked, states that lawyers need to have a basic understanding of the technology they are using and consult technology experts as needed to understand the technology and avoid data breaches. Rather than implement any bright line rules, the ethics committee took the position that a reasonableness standard should apply to a lawyer’s duty of technology competence. See also California State Bar Ethics Op. 2023-208.

In California State Bar Ethics Op. 2010-179, which evaluated computer use and an attorneys’ ethical duties, the ethics committee knew its opinion would not keep pace with technology and instead offered guidance on determining whether any specific use of technology is compliant with the lawyer’s ethical duties. In listing factors that attorneys should consider when using a particular technology, the opinion directed attorneys to consider how the risks of the technology compare to risks of other ways to do a task. For example, email communications can be intercepted, but letters delivered by the U.S. postal service could also be opened or tampered with before getting to the recipient. It was noted that Orange County Bar Association Ethics Op. 97-002 encouraged lawyers to use encrypted email when sending confidential information to clients. In 1997, plenty of lawyers were still using the postal service routinely to send communications to clients. However, our style of communication has changed so rapidly that it is unimaginable that a lawyer could communicate with a client without email. And as such, our need to communicate, the norms of our profession and our society, and the speed of interactions and decision-making have led to an understanding that encrypted email, although more secure, is not desirable in most cases and is not the norm for lawyers.

Although Rule 1.1 does not require lawyers to use any particular technology, it is hard to imagine a lawyer being able to practice law currently without being able to email clients, whether directly or through assistants. Rule 1.4 requires lawyers to keep clients promptly informed of any circumstance for which the rules require disclosure or the client’s informed consent and to keep clients reasonably informed of significant developments in the representation. Although it is possible to comply with these rules by telephone and mailed letters, it is unlikely a client would prefer those means of communication.

Likewise, although AI usage is in its infancy and lawyers and clients are making mistakes, there might come a day when clients expect their lawyers to use AI to make the work more efficient. Although the rules will not change, as with email, our notion of what risks are acceptable might change. As noted in ABA Op. 512: “As GAI tools continue to develop and become more widely available, it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients.” And with more software tools adding AI components, it seems possible that in the future, the software we use will have AI embedded in it, which means that our duty of competence will include having a basic understanding (whether through the lawyer’s own research or through expert advice) of how the AI works in the firm’s environment.

Do Managerial Lawyers Need to Learn AI to Properly Supervise Subordinates Who Use AI? 

Rules 5.1 and 5.3 require supervisory or managing lawyers to supervise subordinate lawyers and nonlawyer staff. Managerial lawyers need to establish firm policies so that lawyers can comply with the Rules and nonlawyer’s conduct is compatible with the lawyers’ ethical obligations. In the AI context, this means that supervisory and managing lawyers should provide guidelines and training on AI use. See the CA Guidance on AI.

After reading Amberg’s and McIntyre’s article, a law firm management’s inclination might be to ban the use of AI in a firm. However, AI tools are tempting for staff and lawyers to use. Many are likely exploring AI in their personal lives. If firm management sets a non-use policy, it might be surprised to learn that staff and attorneys’ personal use of AI blends into workplace use. If a firm has a non-use policy, it should clearly dictate that policy to attorneys and staff and monitor compliance. Otherwise, it is at risk of having lawyers and staff using AI that is not approved and vetted by the firm.

Another approach for firm management is to implement an AI program so that it chooses the tools and provides the rules as to AI use and then provides training on the specific AI so that firm staff and lawyers are more likely to comply with the Rules in the AI use. The firm can also monitor AI use and adjust its policies if the use is out in the open and not hidden from firm management’s view. Managerial and supervisory lawyers can rely on IT experts to help understand AI tools and could consider setting up a special committee or task force within the firm. See comment [3] to Rule 5.1 (“A partner,* shareholder or other lawyer in a law firm* who has intermediate managerial responsibilities satisfies paragraph (a) if the law firm* has a designated managing lawyer charged with that responsibility, or a management committee or other body that has appropriate managerial authority and is charged with that responsibility.” An asterisk in the Rules means the term is defined in Rule 1.0.1.)

With many lawyers testing AI use, as shown in the cases cited in Amberg’s and McIntyre’s articles, managerial lawyers should consider how the firm can learn about AI, whether through IT experts or otherwise, so that they can appropriately guide and train subordinates in compliance with Rules 5.1 and 5.3.

Will Lawyers Need to Advise Clients on AI Use?

Not only are lawyers and staff likely tempted to use AI, many lawyers’ clients areusing AI. From unscientific observation, clients have been emailing lawyers with content that seems to be created by AI. A Southern District of New York judge recently ordered that AI-generated documents created by a defendant using information obtained from his lawyer and then transmitted to his lawyer was not protected by the attorney-client privilege. See Meghan A. Podolny, Jessie Purtell, Hunton Andrews Kurth, “Court Rejects Privilege Claim Over AI-Generated Documents,” The National Law Review, February 17, 2026.  The judge’s reasoning included that the communications between the defendant and AI tool did not include an attorney and the defendant could not have had a reasonable expectation of confidentiality because the AI tool explicitly stated in its privacy policy that information provided by a user could be shared with third parties, including government authorities.

It seems likely that questions will come up in how clients are using AI. Clients cannot be expected to know how to maintain the attorney-client privilege. In certain circumstances, it might be prudent for the lawyer to advise a client regarding the use of AI and the lawyer-client privilege. Although a lawyer might not have a duty to do so, as more court decisions address these issues, it might become important in the representation to provide advice to clients regarding their use of AI.

Conclusion

Although there is no Rule that requires lawyers to become familiar with AI, it seems likely that as its use becomes more prevalent, lawyers will want to have a basic familiarity to be able to competently provide legal services, supervise subordinate lawyers and staff, and advise clients on AI use that affects the legal matter. The articles about lawyers’ misuse of AI are helpful to remind lawyers of AI’s limitations but should not be taken as a reason to put blinders on about AI.