Generative AI has only been here for one year, and we’ve already seen several lawyers make some big blunders trying to use it in legal practice. (Sean Harrington has been gathering them here). Trying to get ahead of the problem, bar associations across the country have appointed task forces, working groups, and committees to consider whether ethical rules should be revised. Although the sand will continue to shift under our feet, this post will attempt to summarize the ethical rules, guidance and opinions related to generative AI that are either already issued or forthcoming. The post will be updated as new rules are issued.

California CPRC Best Practices

On November 16, 2023, the California State Bar Board of Trustees approved their Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law. The document was initially created by the Committee on Professional Responsibility and Conduct. Unlike ethics opinions or formal rules, which tend to be more prescriptive and specific in nature, this document serves as a guide, offering insights and considerations for lawyers as they navigate the new terrain of AI in legal practice. It is organized by duties, with practical considerations for each duty, and addresses the duty of confidentiality, duties of competence & diligence, duty to supervise, duty of candor, disclosure to clients, charging clients for work produced by generative AI, and more.

Florida Bar Advisory Opinion

On January 19, 2024, the Florida Bar issued its Advisory Opinion 24-1, regarding lawyers’ use of generative AI. The opinion discusses the duty of confidentiality, oversight of AI, the impact on legal fees and costs, and use in lawyer advertising.

New Jersey Supreme Court

On January 24, 2024, the New Jersey Bar issued its Preliminary Guidelines on New Jersey Lawyers’ Use of Artificial Intelligence. The guidelines highlight the importance of accuracy, truthfulness, confidentiality, oversight, and the prevention of misconduct, indicating that AI does not alter lawyers’ core ethical responsibilities but necessitates careful engagement to avoid ethical violations.

Judicial Standing Orders

Beginning soon after the infamous ChatGPT error in Mata v. Avianca, judges began to issue orders limiting the use of generative AI or requiring disclosure of its use or checking for accuracy. To date, at least 24 federal judges and at least one state court judge have issued standing orders.

Fifth Circuit’s Proposed Rule

The United States Court of Appeals for the Fifth Circuit recently solicited comments on its proposed new rule requiring certification as to the use of generative AI. It is the first federal appeals court to consider such a rule.

Judicial Ethics Opinions

Finally, in some jurisdictions, ethical bodies have looked beyond the use of generative AI by lawyers, and have given guidance on how judges can and should use generative AI.

On October 27, 2023, the State Bar of Michigan issued an opinion emphasizing the ethical obligation of judicial officers to maintain competence with advancing technology, including artificial intelligence, highlighting the need for ongoing education and ethical evaluation of AI’s use in judicial processes.

Also in October 2023, the West Virginia Judicial Investigation Commission issued Advisory Opinion 2023-22, opining that judges may use artificial intelligence for research but not to determine case outcomes.

Resources

• Bloomberg (collecting judicial standing orders)
• Lexis (collecting judicial standing orders and ethical rules)
• Lawsnap (collecting and summarizing judicial standing orders)
• Ropes & Gray, Standing Orders and Local Rules on the Use of AI (map categorizing orders/rules by type and state)
• RAILS (collecting and summarizing judicial standing orders and local rules)
• EDRM (collecting and summarizing judicial orders)
• State AI Task Force Information (ABA page, collecting information about state bar task forces considering generative AI)