As a former Florida trial lawyer and judge who appreciates emerging technology, I admit that I had more than a little concern when The Florida Bar announced it was working on a new ethics opinion on generative AI. Generative AI promises to provide monumental advantages to lawyers in their workflow, quality of work product, productivity, and time management and more. For clients, use of generative AI by their lawyers can mean better legal services delivered faster and with greater economy. In the area of eDiscovery, generative AI promises to surpass technology assisted review in helping manage the increasingly massive amounts of data.

Generative AI is new to the greater world, and certainly to busy lawyers who are not reading every blogpost on AI. The internet and journals are afire over concerns of hallucinations, confidentiality, bias, and the like. I felt a new ethics opinion might throw a wet blanket on generative AI and discourage Florida lawyers from investigating the new technology.

Thankfully, my concerns did not become reality. The Florida Bar took a thorough look at the technology and the existing ethical guidance and law and applied existing guidelines and rules in a thorough and balanced fashion. This article briefly summarizes Opinion 24-1 and highlights some of its important features.

The Opinion

On January 19, 2024, The Florida Bar released Ethics Opinion 24-1 (“Opinion 24-1”)regarding the use of generative artificial intelligence (“AI”) in the practice of law. The Florida Bar and the State Bar of California are leaders in issuing ethical guidance on this issue. Opinion 24-1 draws from a solid background of ethics opinions and guidance in Florida and around the country and provides positive as well as cautionary statements regarding the emerging technologies. Overall, the guidance is well-placed and helpful for lawyers at a time when so many are weighing the use of generative AI technology in their law practices.

Because ethical compliance is a priority for every lawyer, information in Opinion 24-1 is beneficial to lawyers in jurisdictions and states that may not have adopted specific guidance on ethical use of AI. Opinion 24-1 is based on existing universal ethical rules and standards, which it distills and applies to current issues with generative AI. For those reasons, Opinion 24-1 may also serve as a resource for other Bar associations in developing their own advisory opinions on generative AI.

Nothing New Under the Sun?

One of the constants over my decades as a lawyer and judge is the fact that the fundamental policies and precepts set out in the legal profession’s rules, ethical principles, and professionalism standards do not change appreciably with more recent developments brought on by the likes of new technology or workflows. Most Bar associations carefully imbued their rules and ethics opinions with fundamentals rather than tailoring them with the flavor of the day. If necessary, advisory opinions are issued to cover emerging issues, like those raised by generative AI.

Despite the fact that generative AI is difficult to precisely define and the products and models available are wildly diverse with new versions and products coming on the scene daily, existing ethical guidance for lawyers was available. In support of its guidance, Opinion 24-1 cites more than twenty places in Florida ethical rules as well as seven of its own previous ethical opinions and ethical opinions from the ABA and Iowa and New York state bars. Four cases are cited, including the now infamous case involving a brief drafted by ChatGPT, Mata v. Avianca, 22-cv-1461, 2023 WL 4114965, at 17 (S.D.N.Y. June 22, 2023).

Providing Measured and Useful Guidance Without Instilling Fear

With so ethical guidance already available, knowledgeable legal technology commentators have taken the position that more ethical opinions are not needed See, e.g., B. Ambrogi, Florida Bar Ethics Opinion OKs Lawyers’ Use Of Generative AI, But With Cautions, LawSites (Jan. 25, 2024) found at https://www.lawnext.com/2024/01/florida-bar-ethics-opinion-oks-lawyers-use-of-generative-ai-but-with-cautions.html. In that piece, Bob Ambrogi stated:

My opinion has been that no new rules are needed to address generative AI — that the existing rules and the existing body of ethics opinions pertaining to the use of technology apply with equal force and clarity to generative AI.

B. Ambrogi, Florida Bar Ethics Opinion OKs Lawyers’ Use Of Generative AI, But With Cautions, LawSites (Jan. 25, 2024)

I agree completely with Mr. Ambrogi’s opinion. I was inclined to think that ethical guidance at this early stage of the development of generative AI products and platforms applicable to the legal sphere may discourage lawyers from using AI because they are already risk averse and have been hearing myriad anecdotes and cases about AI pitfalls. I have also been concerned about overbroad court rules requiring disclosure of the use of AI in court papers. People I respect share that concern. See Hon. Xavier Rodriguez, Artificial Intelligence (AI) and the Practice of Law, 24 The Sedona Conference Journal 782 (Sept. 2023); and Grimm, Grossman, & Brown, Is Disclosure and Certification of the Use of Generative AI Really Necessary? Judicature, Vol. 107, No. 2, October 2023.

The massive shift in practice tools and workflow that could beneficially arise from generative AI technologies will be treated with some trepidation by lawyers who are risk averse and do not want to make mistakes in their effort to improve their practices. The vast majority of lawyers are not like my colleagues in the eDiscovery and law technology arena who read about evolving legal technology daily. When I learned that The Florida Bar was on a fast track to developing comprehensive ethical guidance on generative AI, I was concerned that such an opinion may discourage lawyers from taking reasonable steps in using generative AI products. I submitted a comment to The Bar per their comment process and urged others to do so.

My concerns were relieved when I saw Opinion 24-1. The guidance in Opinion 24-1 is provided in a positive fashion and should help lawyers understand how to ethically bridge the gulf to new technology. First I will set out briefly what the Opinion 24-1 covers and then lay out some positive elements that deliver a favorable and positive message to lawyers about the benefits of generative AI. However, my summary below is a mere introduction to the highlights of Opinion 24-1. There is greater detail in the opinion, and it is essential that lawyers who use generative AI in their practice read it thoroughly to understand the full impact. Lawyers who use AI to advertise or use bots on their website to answer questions will find specific ethical advice in Opinion 24-1.

Ethical Guidance in Opinion 24-1

When using generative AI, a lawyer must protect the confidentiality of the client’s information. Opinion 24-1 describes the ethical requirements for confidentiality, citing relevant rules and ethical opinions on the subject, and underscores the importance of fundamentally understanding the technology in order to be able to safeguard information. Opinion 24-1 explains the danger of exposing confidential information to certain generative AI models and mentions that the risk can be mitigated through the use of inhouse models rather than a system where the data is hosted and stored by a third-party.

According to Opinion 24-1, a lawyer need not obtain a client’s informed consent to use generative AI if the use does not involve the disclosure of confidential information to a third-party.

A lawyer has a duty to supervise and oversee AI use and output to ensure that the use of AI is compatible with the lawyer’s own professional obligations. A lawyer must review the work product of a generative AI just as the lawyer must review of the work of nonlawyer assistants because lawyers are responsible for their work product regardless of whether it was in whole or part drafted or researched by a nonlawyer or generative AI. A lawyer must verify the accuracy and sufficiency of all research performed by generative AI. The duties of oversight apply to the work of nonlawyers within or outside the firm.

Opinion 24-1 covers the use of chatbots for client intake and warns about using a generative AI chatbot that may provide legal advice, fail to immediately identify itself as a chatbot, or fail to include clear and understandable disclaimers limiting the lawyer’s obligations. Chatbot interaction may create an attorney-client relationship with a prospective client without the attorney’s knowledge.

Ethical obligations as to legal fees and costs are implicated with the use of generative AI. In light of the potential time-saving advantages of using AI, Opinion 24-1 warns of the danger of charging illegal or clearly excessive fees. An increase in efficiency must not result in falsely inflated claims of time, and, alternatively, Opinion 24-1 suggests that lawyers may want to consider adopting contingent fee arrangements or flat billing rates for specific services. Ethical standards require a lawyer to inform a client of the intent to charge the cost of using generative AI, and the lawyer must always ensure that the charges are reasonable and are not duplicative.

The advertising rules in Subchapter 4-7 of the Rules Regulating The Florida Bar include prohibitions on misleading content and unduly manipulative or intrusive advertisements which are implicated when using generative AI chatbot for advertising and intake purposes or when lawyers advertise the use of generative AI in their practices.

When using generative AI chatbot for advertising and intake, Opinion 24-1 notes that the lawyer is responsible if the chatbot provides misleading information or “communicates in a manner that is inappropriately intrusive or coercive.” To avoid confusion or deception, a lawyer using a chatbot must disclose that prospective clients are communicating with an AI program and not with a lawyer or law firm employee. Additionally, with regard to those accessing a lawyer’s website with questions, a lawyer should consider including screening questions that limit the chatbot’s communications if another lawyer already represents the inquiring person. Lawyers who advertise their use of generative AI cannot claim their generative AI is superior to AI used by others unless the claims are objectively verifiable, which is a fact question made on a case-by-case basis.

Commentary on the Positive Elements of Opinion 24-1

With all of the commotion surrounding the sea change in technology, legal professionals are bombarded with stories with ethical red flags and warnings about generative AI. Most lawyers do not have the time or inclination to read everything that is printed or posted on the internet about generative AI, so it is beneficial that The Florida Bar prepared this advisory opinion.

The duty of supervision and oversight of AI should surprise no one. A lawyer cannot delegate the lawyer’s personal ethical responsibilities to nonlawyers, human or machine.

Some of the most positive elements of Opinion 24-1 are:

• Advisory ethical opinions are not binding, but Opinion 24-1 provides useful information on the implications of using generative AI that enable lawyers to spot potential ethical issues when introducing generative AI in practice workflow, advertising, or client contact.
• Opinion 24-1 explains what generative AI is and provides useful references for more detailed information. Lawyers need to obtain a basic understanding of the functions and characteristics of generative AI in order to better understand why they pose such significant benefits and some risks for legal professionals who use them.
• The fact that generative AI has “the potential to dramatically improve the efficiency of a lawyer’s practice” and that there is “nothing inherently improper about using a reliable artificial intelligence tool for assistance” for submissions to court are acknowledged early in Opinion 24-1 along with the cautionary language. It is important to not over-generalize or feed into fear of using generative AI. The key is to “take reasonable precautions to protect the confidentiality of client information, develop policies for the reasonable oversight of generative AI use, ensure fees and costs are reasonable, and comply with applicable ethics and advertising regulations.” Opinion 24-1 goes on to cover each area of concern.
• The acknowledgment that confidentiality concerns may be mitigated by use of an inhouse generative AI rather than an outside generative AI where the data is hosted and stored by a third-party is helpful. Readers of the opinion should know that providers and product developers in the field are working hard on mitigating confidentiality issues. Additionally, reliable third party closed system platforms may also provide reasonable assurance of confidentiality, given due diligence similar to care taken in cloud computing as covered in Opinion 24-1. Also, generative AI can be used for many law firm tasks that do not involve the disclosure of confidential information.
• As mentioned above, if generative AI is used for tasks that do not involve disclosure of information to a third-party, a lawyer is not required to obtain a client’s informed consent pursuant to Rule 4-1.6, Rules Regulating the Florida Bar. This is important guidance.
• Opinion 24-1 concludes with the caveat that “[l]awyers should be cognizant that generative AI is still in its infancy and that these ethical concerns should not be treated as an exhaustive list.” And “lawyers should continue to develop competency in their use of new technologies and the risks and benefits inherent in those technologies.”

Overall, Opinion 24-1 came out well, despite the complexity and developing state of the technology involved and the short period of time allotted to get the job done, much of it spanning the holiday period. There is no doubt that volunteers and staff worked diligently and exhaustively. Since The Florida Bar Florida has well over 100,000 members, it is fitting that their leadership took on this important task.

CONCLUSION

With a sector of technology that is still in its infancy, use of generative AI products by lawyers will continue to require careful consideration of key ethical standards. While existing ethical rules and guidelines provide significant guidance, Advisory Opinion 24-1 coalesces currently identified issues and guardrails for Florida lawyers that all lawyers and legal professionals can apply. Lawyers should continue to be encouraged to learn about the new technologies so they may achieve the power and time-saving benefits of new technologies while protecting the confidentiality of client information, developing policies and procedures for the supervision of generative AI use, ensuring fees and costs are reasonable, and complying with applicable ethics and advertising regulations.