On July 29, 2024, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 512 addressing some of the ethical issues involving the use of Artificial Intelligence (AI) tools in legal practice, focusing on the use of Generative Artificial Intelligence (GAI) that can create new content, e.g., text, images, videos, etc. The Opinion offers “general guidelines” to lawyers “attempting to navigate this emerging landscape.” As healthcare lawyers, we need to remain mindful of our ethical obligations, as the use of AI will continue to play an expanding role in both legal practice and healthcare.
ABA Ethics Opinion – Use of Artificial Intelligence by Lawyers
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The Committee considered the implications of AI in the context of several of the Model Rules.
The duty of competence under Model Rule 1.1 requires lawyers using AI tools have a “reasonable understanding of the capabilities and limitations” of the tool being used and that any AI output must be reviewed and examined to ensure accuracy.
Confidentiality obligations under Model Rule 1.6 entail evaluation of the risk that client information used in prompts for an AI tool may be disclosed or improperly accessed by others, in violation of the privacy interests of a client.
Disclosure of the use of AI, especially where the AI tool is being employed to make important decisions in a case may be required by the communication obligations of Model Rule 1.4.
The use of AI tools has implications for a lawyer’s obligation to a court to base claims and arguments on accurate fact and law, under Model Rules 3.1, 3.3 and 8.4(c).
The use of AI tools to write briefs potentially risks “AI hallucination” and triggers the obligations, under Model Rules 5.1 and 5.3, of a senior lawyer to supervise the work of subordinate lawyers and paralegals who may use AI tools.
Finally, the opinion advises lawyers that Model Rule 1.5 requires that only the actual time spent on a particular task in which AI tools are used be billed to a client even though the use of the tool required less time than the lawyer historically would have spent.
Notably for healthcare lawyers, the opinion does not explicitly address confidentiality protections for protected health information under HIPAA, but ensuring that such information is properly protected is another important factor that healthcare lawyers should keep in mind when using AI tools.