Many people are discussing the use of generative artificial intelligence (AI) programs in their jobs – whether it’s appropriate, useful and, more importantly, ethical. Nowhere is this conversation more prevalent now than in the law. A recent article in the American Bar Association ABA Journal explored the use of AI by attorneys, and why law firms may actually want to curtail its use – or stop it completely.

The article detailed how a Colorado attorney was fired for writing a motion using ChatGPT. The chatbot included incorrect legal citations, which resulted in a 90-day suspension and a two-year probation period by the Colorado Supreme Court. In another instance, two New York attorneys were fined $5,000 by a federal judge for submitting a legal brief that contained fictitious quotes and court opinions.

The report relayed that, in addition to such programs producing incorrect or untrue information, the programs could cause confidentiality issues for law firms: when an attorney enters identifiable client information, that information could possibly show up elsewhere in another search. As a result, some firms have chosen to set rules around AI’s use - or ban it completely.

The Pennsylvania Bar Association recently weighed in on the discussion, issuing a joint opinion from its committee on legal ethics and professional responsibility, along with its professional guidance committee.

Generative artificial intelligence “represents a significant change and dramatic step in legal applications,” reported the committees, noting that, rather than just analyzing information, generative AI creates it. There are, therefore, no safeguards to prevent incorrect or biased content. The committees noted that attorneys have a responsibility to supervise AI, much as they would an employee or vendor. The committees also stated that attorneys must be competent in the technologies they use and must safeguard confidential client information to ensure it is protected from breaches, data loss and other risks.

The committee opinion issued guidance that lawyers must:

Be truthful and accurate in their use of AI
Verify all citations and the accuracy of cited materials and not rely solely on AI results
Be competent in the use of AI technologies
Maintain confidentiality and safeguard client information
Be vigilant in identifying conflicts of interest arising from using AI systems
Be transparent with clients as to how they will use AI in the case
Ensure the data used in AI is unbiased and accurate
Be vigilant against the misuse of AI generated content
Adhere to ethical standards when using AI in their practice
Recognize that AI is a tool to assist – but not replace - legal expertise and analysis
Ensure that AI-related expenses are reasonable and appropriately disclosed to clients
Be transparent with clients, colleagues and courts about the use of AI in their practice

Despite widespread trepidation, a market study cited in the ABA article claimed that the AI legal software market will grow from $1.3 billion in 2022 to $8.7 billion in 2030. And, while most of the firms interviewed for the article claimed that they would proceed with caution, they also relayed that they would continue to revisit the issue to ensure that attorneys have appropriate access to the technology and tools needed to best serve their clients.

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