What Do Bar Association AI Ethics Opinions Have to Say About AI Use?

What the Florida Bar’s AI ethics opinion suggests for lawyer AI use

The Florida Bar released its advisory AI ethics opinion, Opinion 24-1, on January 24, 2024, which covers ethics surrounding AI use. 

Essentially, Opinion 24-1 confirms that lawyers can use AI when practicing law. However, when using AI, lawyers must prioritize client confidentiality, practice accurately and competently, steer clear of unethical billing methods, and comply with lawyer advertising restrictions. We’ll discuss each of these topics in a little more detail below. 

Note that Opinion 24-1 is not meant to be a comprehensive list of AI-related issues (nor are the following paragraphs meant to be a comprehensive summary of Opinion 24-1!). Lawyers must therefore exercise common sense when using AI tools at all stages of legal practice. 

Prioritizing client confidentiality 

Lawyers who use generative AI have a duty to protect their client’s confidential information, including educating themselves on the tool’s policies on data handling, sharing, and self-learning. However, lawyers do not need to obtain their client’s consent to use AI in relation to their case unless they need to disclose confidential client information to do so. 

Practicing accurately and competently 

At the end of the day, lawyers are responsible for their work—regardless of whether an AI tool is involved. To that end, lawyers must review AI work products to ensure they are accurate and sufficient for their clients’ purposes. Furthermore, Opinion 24-1 confirms that lawyers may not delegate any tasks to AI tools that could constitute the practice of law (for example, negotiating a settlement). 

Steering clear of unethical billing methods

Lawyers may save time on routine legal tasks by using AI; however, they must bill honestly and accurately and avoid unethical billing practices such as double billing or inflated billing. Lawyers must also notify clients if they intend to charge them for the use of AI tools. 

Complying with lawyer advertising restrictions

Lawyers must exercise caution when using AI to assist with advertising and intake—namely, where the use of AI chatbots is concerned. Lawyers must ensure that prospective clients are aware they are communicating with AI (and not a real lawyer) and are responsible for any issues arising due to the information provided by the chatbot (e.g., where a chatbot provides misleading information to a prospective client). 

Have other state bar associations released AI ethics opinions? 

Florida is far from alone. Over the past year, a growing number of state bar associations, courts, and judicial bodies have issued formal ethics opinions, policies, or guidance on the use of artificial intelligence in legal practice.

As of this blog’s most recent update, state bar associations continue to release guidance on AI use in the legal profession, including:

• Alaska
• Arizona
• California
• Connecticut
• Delaware
• District of Columbia
• Florida
• Illinois
• Kentucky
• Michigan (AI Ethics Opinion), Michigan (AI Workgroup Report)
• Minnesota
• Mississippi
• Missouri
• New Jersey
• New Mexico
• New York
• North Carolina
• Oregon
• Pennsylvania
• South Carolina
• Texas
• Vermont
• Virginia (AI Policy), Virginia (AI Ethics Opinion)
• West Virginia (AI Ethics Opinon), West Virginia (Advisory Opinion)

With roughly half of U.S. states having already issued guidance on AI use in the legal profession, more guidance is likely to follow in the near future.

Formal Opinion 512 on Generative Artificial Intelligence Tools remains the most recent ABA ethics guidance on generative AI, from July of 2024. This Opinion outlines relevant ethical obligations for legal professionals when leveraging AI tools in their practices.

What should I do if my state has not issued an AI ethics opinion? 

Even if your bar association has not yet issued an AI ethics opinion, it’s prudent to follow the guidance being provided by Florida and the bar associations noted above. For the most part, the recommendations made by these bar associations are broad (and, frankly, common-sensical) enough to be relevant regardless of your jurisdiction’s specific rules. 

Consider also revisiting your state bar association’s rules of professional conduct to confirm whether any AI-related activities you plan to implement in your law firm may be at odds with current directives and other AI ethical considerations. For example, many state bar associations offer ethics opinions on cloud computing that may provide some insights applicable to the use of artificial intelligence. 

AI ethics opinions and your legal practice

Despite concerns among lawyers that bar associations will never approve of AI use, it appears that the opposite is true: bar associations are beginning to release AI ethics opinions outlining how lawyers can implement AI in their firms while continuing to meet their professional obligations. 

Begin by familiarizing yourself with your bar association’s ethics opinion (or, if your bar hasn’t yet issued its own opinion, familiarizing yourself with the bar associations noted above) and revisiting your state bar association’s rules of professional conduct. Then, start thinking about how you can support your coworkers and colleagues in understanding how AI should be used in your firm. This could involve working on an AI use policy for your law firm, developing an AI committee, or even hosting a “lunch and learn” (or two) to ensure your team is safely leveraging AI. 

And, if you’re just diving into the world of legal AI, check out Manage AI—Clio’s AI-powered solution, designed specifically for law firms and built on our platform-wide principle of protecting sensitive legal data.