Artificial intelligence is everywhere we look in today’s world, and that includes the legal world! AI is being used by attorneys to reduce discovery review time, early case assignment, write emails, prioritize documents, identify relevant information, perform complex data analysis, summarize discovery, draft memos, translate documents, perform legal research, write declarations, prepare oral arguments—the possibilities are endless! The Law Offices of David Silldorf are actively working to make AI a part of our practice to help achieve extraordinary results for our clients.
AI is not only being used by attorneys. It is also making its way to the bench and being utilized by judges for a variety of functions, such as: reviewing briefings, generating oral argument questions, analyzing cited legal authority, summarizing case facts, and assessing which side presented the stronger argument in their briefings. These examples demonstrate why it is so important for attorneys to remain up to date on the latest AI developments and to start utilizing this new technology in their practice.
But when can attorneys get in trouble for using AI? That question remains somewhat unclear as state ethical rules concerning AI are ever evolving and have not yet caught up to the new AI tools that are developing and expanding every day. One of the biggest concerns the California State Bar has identified with using AI technology in legal practice is client confidentiality. Most AI programs out today utilize beta testing and human provided feedback to generate information and new content for their servers. For example, when entering a prompt or giving AI information about a case to summarize, how can attorneys be sure that the information they provide will remain confidential? Who is reviewing the information and where is it being saved? Is that particular AI technology utilizing the data provided by an attorney to make their program better and storing the client’s confidential information? These questions highlight just some of the concerns related to AI usage in the legal practice and ethical obligations regarding client confidentiality.
In addition to confidentiality concerns, there are ethical considerations that attorneys should be mindful of when using AI, including the duties of competence and diligence. Attorneys have a duty to ensure competent use of technology and apply personal diligence with respect to facts and the law. Attorneys should never be relying exclusively on AI and should always be fact checking any work produced by AI before citing it as authority. An attorney should never be in the position where they can’t explain something they presented as factual or binding because they relied on AI and did not check their work. It is important for attorneys to understand the limitations of the AI program they are using and beware of possible incorrect information that may be generated. It is also crucial for attorneys to be mindful of inherent bias that exists in most AI servers to ensure that it does not carry over into their own work or writing. Attorneys should be asking themselves: how can AI help me do this? But at the same time asking themselves: how can AI hurt me doing this?
The California State Bar recently published “Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law.” This publication was intended to address issues and concerns with the use of AI in law and products that use AI as a component of a larger program. Concerning the duty of confidentiality, the CA State Bar practical guide states that:
- Generative AI products are able to utilize the information that is input, including prompts and uploaded documents or resources, to train the AI, and might also share the query with third parties or use it for other purposes. Even if the product does not utilize or share inputted information, it may lack reasonable or adequate security.
- A lawyer must not input any confidential information of the client into any generative AI solution that lacks adequate confidentiality and security protections. A lawyer must anonymize client information and avoid entering details that can be used to identify the client.
- A lawyer or law firm should consult with IT professionals or cybersecurity experts to ensure that any AI system in which a lawyer would input confidential client information adheres to stringent security, confidentiality, and data retention protocols.
- A lawyer should review the Terms of Use or other information to determine how the product utilizes inputs. A lawyer who intends to use confidential information in a generative AI product should ensure that the provider does not share inputted information with third parties or utilize the information for its own use in any manner, including to train or improve its product.
- SeeBus. & Prof. Code § 6068, subd. (e); Rule 1.6; & Rule 1.8.2.
Concerning the duties of competence and diligence, the CA State Bar practical guide states that:
- It is possible that generative AI outputs could include information that is false, inaccurate, or biased.
- Before using generative AI, a lawyer should understand to a reasonable degree how the technology works, its limitations, and the applicable terms of use and other policies governing the use and exploitation of client data by the product.
- Overreliance on AI tools is inconsistent with the active practice of law and application of trained judgment by the lawyer.
- AI-generated outputs can be used as a starting point but must be carefully scrutinized. They should be critically analyzed for accuracy and bias, supplemented, and improved, if necessary. A lawyer must critically review, validate, and correct both the input and the output of generative AI to ensure the content accurately reflects and supports the interests and priorities of the client in the matter at hand, including as part of advocacy for the client. The duty of competence requires more than the mere detection and elimination of false AI-generated results.
- A lawyer’s professional judgment cannot be delegated to generative AI and remains the lawyer’s responsibility at all times. A lawyer should take steps to avoid over-reliance on generative AI to such a degree that it hinders critical attorney analysis fostered by traditional research and writing. For example, a lawyer may supplement any AI-generated research with human-performed research and supplement any AI generated argument with critical, human-performed analysis and review of authorities.
- SeeRule 1.1 and Rule 1.3.
Additional ethical concerns are addressed in the CA State Bar’s practical guide regarding the use of AI in law, including: the duty to comply with the law; the duty to supervise lawyers and nonlawyers; the duty of communication regarding generative AI use; the duty of candor to the tribunal and meritorious claims and contentions; the prohibition on discrimination, harassment, and retaliation; concerns related to charging for work produced by generative AI and generative learning costs; and professional responsibilities owed to other jurisdictions.
- For more information on the CA State Bar’s practical guide regarding the use of AI in law, please visit: Generative-AI-Practical-Guidance.pdf
There’s no denying that—like the internet—AI technology will soon become an integral part of our society and everyday work. While AI technology will likely never replace human attorneys, those who utilize AI may one day soon replace those attorneys who do not. It’s important to stay up to date on new developments in AI technology, but equally important to consider the ethical concerns and evolving state bar rules that are associated with using AI in the legal practice. At the Law Offices of David Silldorf, we are embracing this new wave of technology and continuing to educate ourselves about the pros and cons of AI use in our practice.
