As members of the profession continue to explore how they can use generative artificial intelligence (AI) tools in their practices, and with many firms already using tools like ChatGPT, as well as law firm specific tools, several state bars have issued ethics opinions to guide members in the ethical use of this burgeoning new technology.
We applaud bars for proactively helping their members as, on an almost daily basis, there are new generative AI tools becoming available. There is a lot of hype surrounding the adoption of AI by the profession. And unfortunately, a handful of examples where it was used improperly or with unintended consequences have left some lawyers afraid to consider using it. Rather than scaring their members into avoiding this technology, state bars can help lawyers understand the parameters of this new technology, so members do not get into trouble.
One of the most discussed ethics opinions published thus far is the joint opinion issued in early spring of 2024 from the Pennsylvania State Bar and the Philadelphia Bar Association. It is getting attention from ethics lawyers, technologists and other states because of its detailed discussion, clear reasoning and helpful guidance. We reached out to our friend, Dan Siegal, one of the principal drafters of the opinion who is also currently chair-elect of the ABA Law Practice Division. Dan was kind enough to provide some background and insights on the opinion.
Dan Pinnington and Reid Trautz: What were the key points you wanted to make clear to lawyers through the opinion?
Dan Siegel: The Pennsylvania Bar Association Committee on Legal Ethics and Professional Reasonability saw an opportunity to be at the forefront of guiding the members of profession on the responsible use of AI. To accomplish this goal, we felt we needed to make several key points. First, as with all new technologies, you must understand what you are trying to accomplish, and the strengths and limitations of the technology you are looking to use. Second, you need to consider whether the attorneys’ use of the technology is appropriate and if they are using it responsibly. Thirdly, recognizing generative AI is here to stay, we believe that lawyers will eventually realize that and that they will need to learn and use it responsibly. Fourthly, while it will not replace lawyers, it will eventually fundamentally change some current law firm jobs and even make others obsolete. That said, it will be another technology tool available to help lawyers do the work they need to do. In essence, it will become another staff member you have to monitor just as you would a person.
Pinnington and Trautz: What feedback have you received from members? Did the opinion help ally their concerns, or do they continue?
Siegel: We received many compliments that the opinion explained the ethics issue in a practical and accessible manner. I find that our members fall into two groups. The first has begun using AI and they are embracing the technology while navigating the ethics rules highlighted in the opinion. On the other hand, there is a large contingent that hasn’t tried it, doesn’t seem to understand it and/or are afraid to do so. When talking or presenting to lawyers, I try my best to help them move beyond their fears of the dangers so they can see the potential of generative AI tools. I also encourage them to move ahead slowly rather than continuing to ignore it.
Pinnington and Trautz: The opinion has received positive attention from the profession across North America. What inquiries or direct feedback has the bar received?
Siegel: Mostly, we have received positive feedback that the opinion was needed, and that it addressed a lot of the fears many members had. Surprisingly, most of the feedback centered on the fact that lawyers were pleased that we had issued an opinion on cutting-edge technology that focusing on now and the future, while embracing ethics.
Pinnington and Trautz: Based on your research and continuing review of AI technology, what advice do you have for lawyers who are adopting generative AI today?
Siegel: Like any relatively new technology, what we are seeing now is generative AI in its infancy. The advances are likely to come very quickly. CLE programs taught today are often out of date in weeks or months. Plus, because the technology moves so quickly, lawyers need to take the converse and move slowly. As we point out in the opinion, they must be careful that every product has the protections necessary to be ethically compliant, including maintaining confidentiality, which is paramount. In addition, lawyers can never abdicate their role as lawyers. They still must check every citation and every reference and be confident that what they are submitting is their work. The basic ethics will never change while generative AI technology is constantly evolving.
Pinnington and Trautz: What’s next for AI within the legal profession?
Siegel: What's next for AI within the legal profession? If I knew, I wouldn’t be here. I’d be making a lot more money. But seriously, this technology has so much potential, and we have only seen its infancy. The future is full of exciting possibilities.
Thank you, Dan. We do encourage everyone to read the opinion even if you practice in another jurisdiction. The common sense discussion in the opinion provides, as Dan points out, a very practical and accessible look at the benefits and risk of AI use. How we ethically use generative AI is important to our clients and to our profession. We want to make sure our use protects our clients and our firms, but also avoids the unhelpful media headlines when a lawyer makes an uninformed mistake.
We continue to see and hear the phrase: AI will not replace lawyers, but lawyers using AI will replace lawyers who do not. We believe that phrase will turn out to be true in most practice areas of our profession over the next five to 10 years. Yet we note, as Dan did, that many lawyers are choosing to sit on the sidelines, often out of fear of violating ethics rules.
That is why it is so important that state bars, bar associations, and courts promptly provide their members practical and well-reasoned guidance on the ethical use of AI. We believe this needs to happen through CLE, legal ethics opinions, bar journal articles and other means. This guidance will provide confidence to all lawyers that they can harness the benefits of AI while learning to avoid the risks.
