Generative Artificial Intelligence (GAI) is all the rage these days. GAI is a true game changer, in so many ways, and continues to evolve and expand. GAI in the law is growing quickly (some might say exploding). Application of GAI in the law comes presents new and sometimes difficult questions about ethics, for lawyers and judges alike.
For more than a year, I have served on the Advisory Council of the American Bar Associations’ Law and Artificial Intelligence Task Force, where I have learned a lot from bright people about GAI. During this same time, I have served on various panels discussing GAI and the law, including GAI and access to justice, GAI and the courts and GAI and ethics for lawyers and judges.
At the ABA Annual Meeting in August 2024, the Judicial Division Court Technology Committee and National Conference of State Trial Judges presented a program titled “Ethics, Uses and Abuses of Generative AI (GAI) for Attorneys and Judges: An Interactive Session.” Guam Supreme Court Chief Justice Robert J. Torres, Jr., served as moderator while Kimberly Kim, Assistant Chief ALJ, California Public Utilities Commission; Jennifer A. Mabey, Utah District Court Judge; Stephanie Domitrovich, Pennsylvania Trial Judge; Zach Warren, Thomson Reuters; and I were on the panel. We had a delightful conversation, with a packed house, and many fabulous questions, comments and differences of opinion. Along with an overview of GAI (including terminology, which seems essential in any such discussion), the panel discussed the potential for and concerns about GAI, and hypotheticals with responders, our panel discussed GAI and ethics, both lawyer ethics and judicial ethics. A remote reprise was held in late February 2025. What, then, are some high level takeaways about GAI and judicial ethics?
For lawyers and judges who are also lawyers, GAI and lawyer ethics are essential to understand. Gary Marchant & Joseph Tiano prepared a thoughtful whitepaper in November 2023, used at the December 2023 Arizona Summit on Artificial Intelligence Law and the Courts, titled “Artificial Intelligence and Legal Ethics.” Although in the world of GAI, that is almost prehistoric, the advice they provide continues to have traction now.
Stated broadly, GAI can trigger numerous ethical rules for lawyers under the Model Rules of Professional Conduct, including:
ER 1.1 (competence);
ER 1.2 (client consultation);
ER 1.5 (reasonable fees for the work performed);
ER 1.6 (confidentiality);
ER 3.3 (candor to the tribunal);
ER 4.1 (truthfulness on statements to others);
ER 5.3 (supervising nonlawyers).
So much for lawyers, but how about judges? I’m glad you asked.
Again, stated broadly, GAI can trigger various ethical rules for judicial officers under the Model Code of Judicial Conduct, including:
Rule 1.2 (Promoting Confidence in the Judiciary);
Rule 2.2 (Impartiality and Fairness);
Rule 2.3 (Bias, Prejudice, and Harassment)
Rule 2.4 (External Influences on Judicial Conduct);
Rule 2.5 (Competence, Diligence and Cooperation);
Rule 2.9 (Ex Parte Communications);
Rule 2.12 (Supervisor Duties);
Rule 3.5 (Use of Nonpublic Information & Disclosure).
At very most, this brief article is a starting place to address GAI and judicial ethics. But in closing, along with offering caution and encouraging thoughtful reflection, let me provide two helpful resources:
First, on July 29, 2024, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 512 “Generative Artificial Intelligence Tools.” It provides some good, thoughtful discussion of terminology and ethical issues of competence, confidentiality, communication, candor, supervisory responsibilities, fees, and other issues surrounding GAI and the practice of law. Although lawyer-focused, it is helpful for us judicial types..
Second, the ABA Center for Innovation has an interactive “State Bar AI Task Force Information” website. It includes tabs for state bar and state judiciary AI task forces, maps showing where states are undertaking those efforts and allows links to be added for future undertakings. It is focused on both the bench and the bar.
GAI is here to stay, in ways that only time will tell. Accounting for GAI and judicial ethics is essential, now and in the future, as we continue our journey as life-learners.
