By Daniel J. Siegel
Recognizing that Artificial Intelligence (“AI”) has fundamentally transformed the practice of law by revolutionizing various aspects of legal work, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Philadelphia Bar Association Professional Guidance Committee released Joint Formal Opinion 2024-200 (“Ethical Issues Regarding the Use of Artificial Intelligence”). The Opinion is intended to give Pennsylvania lawyers guidance on how to ethically use AI, particularly in light of cases in which lawyers have submitted briefs that cited false or otherwise unreliable information.
At its core, the Opinion highlights that lawyers must be ethically competent and begins with this core concept:
Lawyers must be proficient in using technological tools to the same extent they are in employing traditional methods. Whether it is understanding how to navigate legal research databases, use e-discovery software, use their smartphones, use email, or otherwise safeguard client information in digital formats, lawyers are required to maintain competence across all technological means relevant to their practice.
The scope of the Opinion is far broader. It underscores the significant impact of AI and generative AI on the legal profession, not only in terms of their applications but also the ethical challenges they pose. AI's automation of tasks like legal research, document review, and case management has revolutionized legal work, allowing lawyers to focus on complex aspects requiring human judgment. However, generative AI, with its ability to create new content, presents a new set of challenges by assisting in drafting documents and synthesizing large volumes of information, thereby raising the ethical bar. In fact, the focus on AI is primarily because of the dramatic expansion of generative AI.
The Opinion acknowledges that integrating AI into legal practice is not without its complications, particularly regarding ethical concerns. The Opinion, therefore, emphasizes that lawyers must ensure the accuracy and honesty of AI-generated content, maintain confidentiality, verify citations, and manage any conflicts of interest that AI systems might introduce. Moreover, there is a strong emphasis on the need for lawyers to understand and competently manage these technologies to utilize them effectively and ethically.
The Opinion also discusses the legal implications of AI hallucinations—instances where AI generates incorrect or misleading information—and the biases inherent in AI systems because of their training datasets. These issues have led to real-world consequences, such as Court proceedings against lawyers who unwittingly submitted incorrect information from AI systems in court documents.
The Opinion notes that Courts have started to adapt by implementing new rules requiring attorneys to disclose AI usage in their submissions and to verify the accuracy of the information provided by these systems. This is part of a broader trend of ensuring that lawyers remain accountable for the tools they use, maintaining the integrity of the legal process.
The Opinion also discusses how various U.S. states and jurisdictions are approaching the regulation of AI in legal practice. Each jurisdiction emphasizes the need for lawyers to understand both the potential and the limitations of AI and to continue adhering to established professional conduct standards regardless of the technological tools they employ.
Next, the Opinion reiterates that while AI can significantly enhance the efficiency and capabilities of legal professionals, it does not replace the need for critical judgment and adherence to ethical standards. Lawyers must stay informed about technological advances and the associated ethical implications, ensuring that their use of AI aligns with professional responsibilities and client interests.
The Opinion also focuses extensively on the Rules of Professional Conduct implicated by AI. They include Pennsylvania Rules of Professional Conduct 1.1(Competence), 1.4 (“Communication”), 1.6 (“Confidentiality of Information”), 1.7 (“Conflict of Interest: Current Clients”), 1.9 (“Duties to Former Clients”), 3.1 (“Meritorious Claims and Contentions”), 3.3 (“Candor Toward the Tribunal”), 5.1 (“Responsibilities of Partners, Managers and Supervisory Lawyers”), 5.3 (“Responsibilities Regarding Nonlawyer Assistance”), 5.5 (“Unauthorized Practice of Law; Multijurisdictional Practice of Law”) and 8.4 (“Misconduct”) and explain:
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AI's implications for confidentiality, competence, candor, and communication: Lawyers must not reveal or use confidential information of their clients in AI that lacks adequate security measures and must inform and consult with their clients about the use of AI. Lawyers must also ensure that AI does not make false or misleading statements or arguments to the tribunal and that AI does not give legal advice or engage in unauthorized practice of law.
Finally, the Opinion offers extensive guidance, suggests best practices, and concludes with twelve takeaways.:
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Lawyers must ensure that AI-generated content, such as legal documents or advice, is truthful, accurate, and based on sound legal reasoning, upholding principles of honesty and integrity in their professional conduct.
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Lawyers must ensure the accuracy and relevance of their citations in legal documents or arguments. When citing legal authorities such as case law, statutes, regulations, or scholarly articles, lawyers should verify that the citations accurately reflect their referencing content.
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Lawyers must be competent in using AI technologies.
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Lawyers must safeguard information relating to the representation of a client and ensure that AI systems handling confidential data (1) adhere to strict confidentiality measures and (2) confidential data will not be shared with other clients or others not protected by the attorney-client privilege.
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Lawyers must be vigilant in identifying and addressing potential conflicts of interest arising from using AI systems.
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Lawyers must communicate with clients about using AI technologies in their practices, providing clear and transparent explanations of how such tools are employed and their potential impact on case outcomes. If necessary, they should obtain client consent before using certain AI tools.
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Lawyers must ensure that the data used to train AI models is accurate, unbiased, and ethically sourced to prevent perpetuating biases or inaccuracies in AI-generated content.
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Lawyers must be vigilant against the misuse of AI-generated content, ensuring it is not used to deceive or manipulate legal processes, evidence, or outcomes.
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Lawyers must stay informed about relevant regulations and guidelines governing the use of AI in legal practice to ensure compliance with legal and ethical standards.
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Lawyers must exercise their professional judgment in conjunction with AI-generated content and recognize that AI is a tool that assists but does not replace legal expertise and analysis.
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AI has tremendous time-saving capabilities. Lawyers must, therefore, ensure that AI-related expenses are reasonable and appropriately disclosed to clients.
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Lawyers should be transparent with clients, colleagues, and the courts about the use of AI tools in legal practice, including disclosing any limitations or uncertainties associated with AI-generated content.
Artificial intelligence, like any tool, must be used with knowledge of their potential and an awareness of the risks and benefits the technology offers. This Opinion will help both the initiated and the novice get the most out of artificial intelligence.
Daniel J. Siegel, a member of the Board of The Philadelphia Lawyer, is the principal of the Law Offices of Daniel J. Siegel, LLC, and chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility. He provides ethical, techno-ethical, and disciplinary guidance and representation, as well as appellate, writing, and trial preparation services to other attorneys. He can be reached at dan@danieljsiegel.com.
