The American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 512, which attempts to provide guidance on the ethical considerations of lawyers who use generative artificial intelligence (GAI) tools. Although the opinion addresses important issues, it may raise as many questions as it answers regarding the use of GAI in the practice of law.
The ABA’s formal Opinion 512 addresses important ethical considerations for lawyers using GAI, including competency, confidentiality, client communication, openness to courts, oversight, and fee arrangements. The opinion emphasizes that lawyers must understand the capabilities and limitations of the GAI tools they use and not cede their professional judgment to GAI. The opinion also cautions against uncritical reliance on AI-generated content.
According to the opinion, lawyers should take several steps to understand the capabilities and limitations of GAI tools. It stresses that lawyers must either acquire a “reasonable understanding” of the benefits and risks of the specific GAI tools they use or consult with experts who can provide such advice. The opinion recommends learning about GAI tools geared toward the legal profession, attending relevant continuing education programs for lawyers, and staying up to date on current developments in GAI technology.
Importantly, the opinion cautions lawyers that, at a minimum, they should read and understand the terms of use, privacy policies, and related contractual terms of any GAI tools they use. If lawyers cannot fully understand these terms, they should consult colleagues or outside experts who have analyzed them. The opinion also notes that lawyers may need to consult IT professionals or cybersecurity experts to fully understand how GAI tools use information. However, the ABA does not provide a clear definition of what constitutes a “reasonable understanding,” so lawyers may be unsure of the extent to which they need to know to meet their ethical obligations.
In addition, the opinion discusses several situations where disclosure and informed client consent are required regarding the use of GAI. For example, it notes that with “self-learning” GAI systems, which the opinion describes as GAI systems that “learn from themselves as they collect more data,” lawyers must obtain the client’s informed consent before entering any information related to the client’s representation. Although the opinion provides an example of a permissible use of “self-learning” GAI that does not require client consent (i.e., to generate ideas without entering client-specific information), the phrase “any information related to the client’s representation” leaves room for interpretation.
Although the opinion provides some necessary guidance, its cautious approach may not fully account for the transformative potential of GAI in the practice of law. However, the Committee recognizes the rapidly evolving nature of GAI technology and acknowledges that “as (GAI) technology evolves, the risks may change in ways that would alter our conclusion.” It is important to note that formal opinions from the ABA, while persuasive, are not binding and may not reflect the approach that state bars or courts ultimately choose to take.(1)
Formal Opinion 512 is available here.
(1)See for exampleFlorida Bar Ethics Opinion 24-1, available at: https://www.floridabar.org/etopinions/opinion-24-1/ (recommends that a lawyer “obtain informed consent from the affected client before using a third-party generative AI program when the use would involve the disclosure of confidential information.”); see also State Bar of Cal. Standing Comm. on Prof’l Resp. & Conduct, Practical Guidance For the Use of Generative Artifical Intelligence in the Practice of Law (2024), available at: https://www.calbar.ca.gov/Portals/0/documents/ethics/Generative-AI-Practical-Guidance.pdf (noting that “(a) lawyer shall not enter client confidential information into a generative AI solution that does not have adequate confidentiality and security safeguards in place. A lawyer shall anonymize client information and avoid entering details that can be used to identify the client.”).
