Workers' Compensation: Ethical AI Use: Essential Guidelines for Attorneys

The American Bar Association (ABA) issued Formal Opinion 512, which provides crucial guidance on attorneys' ethical use of Generative AI (GAI) tools. The opinion focuses on competency, confidentiality, communication, supervision, and fees. It also outlines attorney responsibilities and ethical obligations.

1. Competence

Model Rule 1.1 Attorneys must provide competent representation, which includes understanding the benefits and risks of technologies used in legal services. This necessitates that lawyers develop adequate knowledge and skills regarding GAI tools either through self-study, collaboration with other knowledgeable attorneys, or consulting with experts.

To competently use GAI tools, attorneys should:

- Stay informed about the evolving capabilities and limitations of these tools.
- Ensure they are capable of evaluating the outputs generated by GAI to verify accuracy and relevance.
- Be prepared to explain the use and function of GAI tools to clients when necessary.

2. Confidentiality

Model Rule 1.6 Protecting client information is paramount. Lawyers must assess and mitigate the risks of unauthorized disclosure when using GAI tools. This includes understanding how data input into GAI tools might be exposed to third parties or misused within the firm.

Key considerations include:

- Evaluating the specific GAI tool's security measures.
- Ensuring that any client data entered into a GAI tool is adequately protected from inadvertent disclosure.
- Obtaining informed client consent when the use of GAI tools involves significant risks to confidentiality.

3. Communication

Model Rule 1.4: Attorneys have a duty to communicate effectively with clients, which encompasses informing them about the use of GAI tools when it affects their representation. This includes:

- Explain how GAI tools will achieve the client’s objectives.
- Disclosing the use of GAI tools when it impacts the basis or reasonableness of legal fees.
- Informing clients about the implications of using GAI tools, especially when such tools are integrated into decision-making processes.

4. Supervision

Model Rules 5.1 and 5.3: Lawyers with managerial or supervisory roles must ensure that both lawyers and non-lawyers within the firm comply with ethical obligations concerning the use of GAI tools. This involves:

- Implementing policies and training programs to ensure proper use and understanding of GAI tools.
- Supervising the use of GAI tools to prevent misuse or ethical violations.
- Establishing clear guidelines and practices for handling client information within GAI tools.

5. Fees

Model Rule 1.5: Lawyers must charge reasonable fees when using GAI tools. The efficiency gains from GAI tools should translate into fair billing practices, ensuring that clients are not overcharged for tasks expedited by technology. Lawyers should:

- Be transparent about how the use of GAI tools affects billing.
- Avoid billing for time spent learning or configuring GAI tools unless it directly benefits the client.

Attorney Responsibility

The ABA Formal Opinion 512 underscores the importance of maintaining high ethical standards while integrating GAI tools into legal practice. Lawyers are responsible for ensuring competency, protecting client confidentiality, maintaining clear and honest communication, supervising the ethical use of these tools within their firms, and charging reasonable fees. By adhering to these guidelines, attorneys can effectively leverage GAI tools while upholding their professional responsibilities.

Formal Opinion 512 Generative Artificial Intelligence Tools, July 29, 2024

Recommended Citation: Gelman, Jon L., Ethical AI Use: Essential Guidelines for Attorneys, www.gelmans.com (07/31/2024) https://workers-compensation.blogspot.com/2024/07/ethical-ai-use-essential-guidelines-for.html

......

ORDER NOW

....

*Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (West-Thomson-Reuters). For over five decades, the Law Offices of Jon Gelman 1.973.696.7900
jon@gelmans.com has represented injured workers and their families who have suffered occupational illnesses and diseases.