AI Legal Ethics: New Guidance from New York
April 11, 2024
Privacy Plus+
Privacy, Technology and Perspective
This week, let’s consider recent guidance issued by the New York State Bar Association's Task Force on AI and Ethics. To date, it is the most comprehensive guidance addressing the ethical and practical implications of the use of artificial intelligence (AI) by lawyers.
Background
State Bar Associations have been engaged in efforts to address the impact of AI on the legal profession, especially as generative AI has captured everyone’s imagination. We have written previously about guidance issued by California and Florida, and you can read more about that by clicking on the following link:
https://www.hoschmorris.com/privacy-plus-news/ai-legal-ethics
New York AI Guidance
The latest guidance from New York’s AI Task Force emphasizes the critical balance between leveraging AI's benefits and mitigating its risks within the legal profession. It underscores the need for ethical guidelines that ensure AI's use upholds confidentiality, privacy, and data security while fostering competence and diligence. The report also highlights concerns about AI potentially widening the justice gap and introduces recommendations for ethical AI integration, addressing bias, fairness, and regulatory challenges to maintain high professional standards.
Here are the key points regarding the ethics issues associated with the use of AI tools by lawyers offered in the NY guidance:
· Competence: Lawyers must understand the benefits, risks, and ethical implications associated with AI, including its use for communication, advertising, research, legal writing, and investigation.
· Scope of Representation: Lawyers should consider updating their client engagement letters with a statement that AI may be utilized in the representation and seek the client’s consent/acknowledgment.
· Diligence: Lawyers should consider whether the use of AI will augment the effectiveness of the representations of their clients.
· Communication: Lawyers must ensure they directly and effectively communicate with their clients and never rely solely on content generated by AI for that communication.
· Fees: The use or failure to use AI should be considered as a factor in determining the reasonableness of the fees charged.
· Confidentiality: Lawyers must protect sensitive client data and ensure that their use of AI does not compromise client confidentiality obligations. To this end, lawyers should seek assurance from their vendors that the AI will preserve confidentiality.
· Conflicts of Interest: The use of AI tools may potentially compromise the duty of loyalty by creating a conflict of interest with another client, and lawyers should seek informed client consent for such conflicts of interest.
· Supervisory Responsibilities: Supervising lawyers must ensure that their subordinate lawyers adhere to the ethical rules when utilizing AI tools.
· Subordinate Lawyers: Subordinate lawyers are independently required to adhere to the ethical rules.
· Responsibilities for Non-Lawyers: AI tools are considered “non-lawyers” when employed for work by lawyers. Lawyers have responsibility for “non-lawyers” and paralegals. As lawyers, we are responsible for the AI tools we use.
· Professional Independence: Lawyers should refrain from relying on the outputs of AI tools. They must exercise independent judgment.
· Unauthorized Practice of Law: Human oversight is necessary to avoid UPL issues when using AI tools. AI tools should not replace legal work, but should augment it when performed by lawyers.
· Voluntary Pro Bono Service: AI tools may enable lawyers to increase the amount of their pro bono work.
· Advertising: Lawyers are responsible for all content that they post, including content generated by AI tools. The report recommends being cautious when using AI tools for advertising or solicitation and ensuring that lawyers comply with ethical guidelines regarding truthful and non-deceptive communication.
· Solicitation and Recommendation of Professional Employment: Lawyers must not use AI tools to automatically generate phone calls, chat board posts, or other forms of solicitation, nor contract to use the Tools for such purposes.
A link to the guidance follows:
https://nysba.org/app/uploads/2024/04/Task-Force-on-AI-Report-draft-2024-04-02-FINAL.pdf
Note that on pages 58-60, the report contains a helpful chart summarizing the points above. Overall, the report recommends a focus on the education of lawyers, judges, law students, and regulators, prioritizing such education over legislation. Additionally, it raises broader questions about the function of law as a governance tool, recognizing that the rapid advancement of AI raises profound questions about our social values, risks to such values, and the stability of society.
The report also contains helpful appendices, including summaries of current AI-focused laws, resources for more information, and even a sample clause about the use of generative AI for an engagement letter, which reads:
Use of Generative AI: While representing you, we may use generative AI tools and technology to assist in legal research, document drafting, and other legal tasks. This technology enables us to provide more efficient and cost-effective legal services. However, it is important to note that while generative AI can enhance our work, it is not a substitute for the expertise and judgment of our attorneys. We will exercise professional judgment in using AI-generated content and ensure its accuracy and appropriateness in your specific case.
Our Thoughts
This report is a worthwhile and thought-provoking read, and stands, by far, as the most comprehensive guidance issued for lawyers to date. However, the diversity in guidance across states like California and Florida, while beneficial in nurturing a dialogue, suggests the need for a unified approach.
A national framework, possibly spearheaded by the American Bar Association, could synthesize these guidelines, ensuring consistency across jurisdictions. After all, legal ethics and AI’s impact transcend state lines. Further, the legal issues posed by AI, such as inaccuracy, bias, data privacy issues, and intellectual property violations, are not confined to any single jurisdiction. Thus, collective action and collaboration become imperative, especially as AI becomes more integrated into legal practices.
We also that a broader discussion about the law and our values is warranted, and we have written about this in the past. For more, please review our post, “Artificial Intelligence Needs Human Values,” which is available by clicking on the following link:
https://www.hoschmorris.com/privacy-plus-news/artificial-intelligence-needs-human-values
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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet, and technology. Open the Future℠.