The State Bar of California and ABA Pave the Way for Generative AI Guidelines for Law Firms

Date: December 11, 2023

In a groundbreaking move, the State Bar of California has recently paved the way for lawyers on the use of generative artificial intelligence (AI) in their legal practices. The guidelines, officially titled “Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law,” have positioned California at the forefront of ethics guidance for integrating AI technology within the legal realm.

California’s Progressive Stance

As of November 16, 2023, the California Bar approved these comprehensive guidelines, marking the first instance where a regulatory agency officially sanctioned the use of AI tools for legal professionals. Erika Doherty, the program director for the California Bar’s Office of Professional Competence, emphasized the significance of this milestone, stating that it is the “very first AI item that is specifically approved by a regulatory agency for lawyers.”

Key Recommendations

These guidelines provide a framework for lawyers to navigate the ethical implications of incorporating generative AI into their practices. Here are some key recommendations outlined in the guidelines:

1.  Confidentiality

Lawyers are advised not to input any confidential client information into generative AI solutions unless they are certain that the provider will not share or use the information for its own purposes. Anonymizing input data is crucial to safeguard client confidentiality.

2.  Competence

Lawyers must possess a thorough understanding of how generative AI solutions operate, acknowledging their limitations and potential use of client data. The guidelines stress the importance of not blindly trusting AI-generated outputs and mandate a review and analysis of these outputs to align with the client’s interests and priorities.

3.  Communication

Lawyers should consider disclosing their intent to use generative AI in client representation, elucidating how the technology will be employed, and communicating the benefits and risks associated with its use.

4.  Billing Practices

While lawyers can leverage generative AI to enhance efficiency, the guidelines prohibit charging hourly fees for time saved by using these tools. Fee agreements should transparently explain the basis for all charges, including those associated with generative AI use.

5.  Candor to the Tribunal

Lawyers must review all submissions to the court for accuracy, including analysis and case law citation. This is crucial in light of generative AI’s propensity to produce inaccurate or fictional legal information.

6.  Prohibition on Discrimination

Recognizing the potential biases in generative AI systems, lawyers are urged to be vigilant about possible biases and their associated risks when using these tools, especially in screening potential clients or employees.

New York State Bar Association’s Task Force

Parallel to California’s progressive stance, the New York State Bar Association established the Task Force on Artificial Intelligence in July 2023. Although the task force has yet to issue proposed guidelines, its mission is to thoroughly examine AI’s role in the legal domain. Unlike California’s focused guidelines on generative AI, New York’s task force is expected to evaluate a broader spectrum, including “AI-based software” and “machine learning tools.”

Similar to California, New York’s task force aims to propose legislation regulating AI in the legal field. The exact nature of such legislation remains to be seen, but the proactive exploration of AI’s implications indicates a commitment to staying ahead of technological advancements.

ABA’s National Initiative

The American Bar Association (ABA) established the ABA Task Force on Law and Artificial Intelligence. This national initiative recognizes the broad impact of AI on the legal profession and seeks to understand and mitigate associated risks. The ABA Task Force acknowledges the unique challenges posed by generative AI and is dedicated to developing comprehensive guidelines.

The ABA Task Force’s mission statement encompasses a wide range of considerations, including evaluating AI’s impact on lawyers’ ethical duties, addressing confidentiality concerns, examining the potential risk of unauthorized practice of law, and assessing the overall impact on practice management.

State Bar Associations Join the Movement

Beyond California, New York, and the ABA, other state bar associations are taking similar action. New Jersey’s State Bar Association has created a task force specifically focused on studying how AI tools will impact the legal industry. Similar efforts are underway in Illinois, Kentucky, Minnesota, and Texas, where state bar associations have formed working groups to delve into the legal and ethical implications of AI in the legal profession.

Future Implications

As AI becomes increasingly integral to legal practice, questions about defining the practice of law and establishing guidelines for AI use are gaining prominence. Federal guidance may become imperative for national consistency, possibly leading to certification requirements for generative AI participating in legal practice. Such certification may involve maintaining confidentiality, cross-checking AI-aided case law citations, and addressing potential biases in generative AI.

California’s proactive approach sets a precedent for other states to follow suit. The Florida Bar’s ethics committee, for instance, released a proposed opinion recommending client consent before using AI systems, oversight by human lawyers, and ethical billing practices. The North Carolina State Bar has also published key ethical considerations for AI use in the legal profession.

The recent CSBA/ABA rulings in California signify a significant step forward in integrating generative AI into legal practice. While providing much-needed guidance, these guidelines are acknowledged as an “interim step” due to the evolving nature of AI technology. As other states grapple with similar considerations, the legal landscape is poised for further evolution as regulators and legal professionals navigate the ethical, practical, and technological dimensions of AI in the legal domain.

Questions about how to manage your law firm’s content in a shifting landscape full of AI-related pitfalls? Reach out to 9Sail for more information.