The topic of artificial intelligence (AI) has quickly become a dominant conversation across various industries, including the legal profession. AI usage is now embedded in nearly every aspect of modern legal practice.
The ABA Business Law Section recently held a CLE program titled “AI, Esq.? Legal Ethics and Practical Considerations for Business Lawyers” at its Spring Meeting in Atlanta, GA. Monika McCarthy, Managing Director & General Counsel at CrossCheck Compliance LLC, moderated the program.
The panel included speakers César Escovar, Senior Manager of Compliance Advisory at Capital One; Sarah Gatti, Head of Legal at Zappi; Tammy Malvin, Partner at Akerman LLP; and Drédeir Roberts, Founding Member at Drédeir Law. They explored how lawyers can responsibly integrate AI into their practices in compliance with legal ethics obligations.
ABA Formal Opinion 512 provides that lawyers using generative AI tools must fully consider their applicable ethical obligations, including duties to provide competent legal representation and protect client information. The opinion confirms that lawyers’ use of generative AI does not relieve them of existing ethical rules.
AI tools are increasingly used for legal research, drafting, discovery, litigation strategy, transactional work, and enterprise governance. Model Rule 1.1 means lawyers must know how generative AI works conceptually, but not necessarily the technical aspects of it.
Lawyers can show they are continuously staying abreast of technological advancements by having a working knowledge of AI tools. However, consulting or relying solely on AI experts is not enough; lawyers should also consult with information security and privacy experts as part of their AI literacy training.
From a compliance standpoint, courts have a tendency to treat AI as an operational agency acting on behalf of the company. When inputting data into generative AI, lawyers are bound by strict confidentiality and must protect against third-party data usage.
They must establish vetting protocols to ensure the third-party vendor’s management processes and data policies do not pose risks to the enterprise and client.
Lawyers should be able to map the data flow and understand how pass-through data are being handled, including aggregate or anonymized data.
Courts are still grappling with how traditional privilege and work-product doctrines apply to AI-generated materials.
One thing that has been clear is that AI is viewed as a nonlawyer assistant, and if a lawyer or judge directed the AI use, then their supervisory obligations apply.
It is essential to note that AI “amplifies both good and bad lawyering.”
The panel presented examples of AI-assisted litigation cases.
Lawyers must establish a working knowledge of AI tools to stay abreast of technological advancements and their impact on the legal profession, and learn about cyber threats to law firms.
