On July 29, 2024, the American Bar Association (ABA) issued Formal Opinion 512 regarding the use of generative artificial intelligence tools.

The 15-page opinion addressed the use of generative artificial intelligence in the practice of law, focusing on the specific rules pertaining to confidentiality, communications, legal fees, competence, and other related rules.

What Is GAI?

First, it is important to know what generative artificial intelligence is, to understand the context of the ABA opinion.

Generative artificial intelligence (GAI) has a number of definitions, but generally the computer tool generates new text, images, audio, video, and the like based on inputs from the user.

For example, GAI can draft a letter, a legal brief, a contract, or an outline of deposition questions based on information provided by the user.

GAI can be a useful time-saving tool, but the user must be mindful of the corresponding rules pertinent to our representation of clients in the legal arena.

Confidentiality

Pursuant to ABA Model Rule 1.6 (Wisconsin SCR 20:1.6), a lawyer must keep all information relating to the representation of a client confidential, unless the client gives informed consent, or if the authorization to disclose certain information is implied based on the scope of representation.

Lawyers must be careful not to disclose confidential information into a GAI program without assessing the risk that the information could become public. A self-learning GAI tool could potentially disclose confidential information input into a web-based program.

Thus, a lawyer should understand the tool’s terms of use, secure a client’s informed consent, and perhaps even consult an IT specialist before using the tool to ensure that a client’s confidential information is reasonably protected.

Communication

ABA Model Rule 1.4 (SCR 20:1.4) requires a lawyer to reasonably consult with the client to accomplish the client’s objectives, keep the client reasonably informed, and obtain the client’s informed consent regarding the scope of representation.

Client consent would be required in situations where the lawyer intends to disclose confidential information in the GAI program. Or consent would be required in situations where the client asks if the lawyer uses GAI or if the terms of the engagement agreement require disclosure.

However, in certain situations, a lawyer need not disclose use of GAI. For example, using GAI to generate broad ideas for a deposition would not require disclosure if no confidential information was input into the program.

Legal Fees

ABA Model Rule 1.5 (SCR 20:1.5) broadly states that a lawyer shall not charge an unreasonable fee or charge for unreasonable expenses.

In the context of GAI, that means the lawyer must advise the client if GAI-related expenses will arise from the representation. However, a lawyer generally may not charge a client for firm overhead, such as a subscription fee. A lawyer may, however, charge for per-use out-of-pocket expenses associated with, for example, GAI’s review and summary of thousands of pages of records.

And, of course, the lawyer may not charge for time that would have been spent on a task but for the GAI tool. If use of the GAI tool reduces the time to prepare a brief, for example, the lawyer must charge for the actual time expended, not the time the lawyer would have spent had the GAI tool not been used.

Competence

In talking with colleagues, I get the sense that many simply do not use GAI nor do they have an interest in learning a new trick.

Unfortunately, burying one’s head in the sand may not be an option. ABA Model Rule 1.1 (SCR 20:1.1) requires a lawyer to provide competent representation to a client. This requirement would include keeping reasonably abreast of changes in the law practice and use of relevant technology to represent clients.

This is not to say that all lawyers must become IT wizards. Lawyers should, however, attend relevant CLE courses, read up on GAI technology, and/or consult with others who are proficient in using GAI technology.

Conclusion

This article provides only a broad overview of ABA Formal Opinion 512. I would encourage you to review the opinion in its entirety if you have specific questions or concerns.

I also encourage you to attend a CLE on the topic. It seems that relevant CLEs are being offered more frequently now that the technology is becoming mainstream.

Editor’s note: You can find CLE on generative AI by following this link to the State Bar of Wisconsin Marketplace for offerings under “artificial intelligence.”

Also, you can find articles that discuss using generative AI in State Bar publications, such as Wisconsin Lawyer magazine and WisBar InsideTrack, using this search link on WisBar.org.