MTC: Can Lawyers Ethically Use Generative AI with Public Documents? 🤔 Navigating Competence, Confidentiality, and Caution! ⚖️✨

Lawyers need to be concerned with their legal ethics requirements when using AI in their work!

After my recent interview with Jayne Reardon on The Tech-Savvy Lawyer.Page Podcast 🎙️ Episode 99, it made me think: “Can or can we not use public generative AI in our legal work for clients by only using publicly filed documents?” This question has become increasingly relevant as tools like ChatGPT, Google's Gemini, and Perplexity AI gain popularity and sophistication. While these technologies offer tantalizing possibilities for improving efficiency and analysis in legal practice, they also raise significant ethical concerns that lawyers must carefully navigate.

The American Bar Association (ABA) Model Rules of Professional Conduct (MRPC) provide a framework for considering the ethical implications of using generative AI in legal practice. Rule 1.1 on competence is particularly relevant, as it requires lawyers to provide competent representation to clients. Many state bar associations provide that lawyers should keep abreast of the benefits and risks associated with relevant technology. This scrutiny highlights AI’s growing importance in the legal profession.

However, the application of this rule to generative AI is not straightforward. On one hand, using AI tools to analyze publicly filed documents and assist in brief writing could be seen as enhancing a lawyer's competence by leveraging advanced technology to improve research and analysis. On the other hand, relying too heavily on AI without understanding its limitations and potential biases could be seen as a failure to provide competent representation.

The use of generative ai can have complex ethic's’ requirements.

The duty of confidentiality, outlined in 1.1, presents another significant challenge when considering the use of public generative AI tools. Lawyers must ensure that client information remains confidential, which can be difficult when using public AI platforms that may store or learn from the data input into them. As discussed in our October 29th editorial, The AI Revolution in Law: Adapt or Be Left Behind (& where the bar associations are on the topic), state bar associations are beginning (if not already begun) scrutinizing lawyers use of generative AI. Furthermore, as Jayne Reardon astutely pointed out in our recent interview, even if a lawyer anonymizes the client's personally identifiable information (PII), inputting the client's facts into a public generative AI tool may still violate the rule of confidentiality. This is because the public may be able to deduce that the entry pertains to a specific client based on the context and details provided, even if they are "whitewashed." This raises important questions about the extent to which lawyers can use public AI tools without compromising client confidentiality, even when taking precautions to remove identifying information.

State bar associations have taken varying approaches to these issues. For example, the Colorado Supreme Court has formed a subcommittee to consider recommendations for amendments to their Rules of Professional Conduct to address attorney use of AI tools. Meanwhile, the Iowa State Bar Association has published resources on AI for lawyers, emphasizing the need for safeguards and human oversight.

The potential benefits of using generative AI in legal practice are significant. As Troy Doucet discussed in 🎙️Episode 92 of The Tech-Savvy Lawyer.Page Podcast, AI-driven document drafting systems can empower attorneys to efficiently create complex legal documents without needing advanced technical skills. Similarly, Mathew Kerbis highlighted in 🎙️ Episode 85 how AI can be leveraged to provide more accessible legal services through subscription models.

Do you know what your generative ai program is sharing with the public?

However, the risks are equally significant. AI hallucinations - where the AI generates false or misleading information - have led to disciplinary actions against lawyers who relied on AI-generated content without proper verification. See my editorial post My Two Cents: If you are going to use ChatGTP and its cousins to write a brief, Shepardize!!! Chief Justice John Roberts warned in his 2023 Year-End Report on the Federal Judiciary that "any use of AI requires caution and humility".

Given these considerations, a balanced approach to using generative AI in legal practice is necessary. Lawyers can potentially use these tools to analyze publicly filed documents and assist in brief writing, but with several important caveats:

1. Verification: All AI-generated content must be thoroughly verified for accuracy. Lawyers cannot abdicate their professional responsibility to ensure the correctness of legal arguments and citations.

2. Confidentiality: Extreme caution must be exercised to ensure that no confidential client information is input into public AI platforms.

3. Transparency: Lawyers should consider disclosing their use of AI tools to clients and courts, as appropriate.

The convergence of ai, its use in the practice of law, and legal ethics is here now1

4. Understanding limitations: Lawyers must have a solid understanding of the capabilities and limitations of the AI tools they use.

5. Human oversight: AI should be used as a tool to augment human expertise, not replace it.

This blog and podcast has consistently emphasized the importance of these principles. In our discussion with Katherine Porter in 🎙️ Episode 88, we explored how to maximize legal tech while avoiding common pitfalls. In my various posting, there has always been an emphasis on the need for critical thinking and careful consideration before adopting new AI tools.

It's worth noting that the legal industry is still in the early stages of grappling with these issues. As Jayne Reardon explored in 🎙️ Episode 99 of our podcast, the ethical concerns surrounding lawyers' use of AI are complex and evolving. The legal profession will need to continue to adapt its ethical guidelines as AI technology advances.

While generative AI tools offer exciting possibilities for enhancing legal practice, their use must be carefully balanced against ethical obligations. Lawyers can potentially use these tools to analyze publicly filed documents and assist in brief writing, but they must do so with a clear understanding of the risks and limitations involved. As the technology evolves, so too must our approach to using it ethically and effectively in legal practice.

MTC

🎙️Ep. 99: Navigating the Intersection of Law Ethics and Technology with Jayne Reardon.

Meet Jayne Reardon, a nationally renowned expert on legal ethics and professionalism who provides ethics, risk management, and regulatory advice to lawyers and legal service providers. Jayne is an experienced trial lawyer who has tried cases in state and federal courts across Illinois and on appeal up to the United States Supreme Court. She also sits on the national roster of the American Arbitration Association for Commercial and Consumer Arbitration. Moreover, she is a certified neutral in the Early Dispute Resolution Process. Jayne's experience includes service as Executive Director of the Illinois Supreme Court Commission on Professionalism, an organization dedicated to promoting ethics and professionalism among lawyers and judges, and disciplinary counsel for the Illinois Attorney Registration and Disciplinary Commission.

In today's conversation, Jayne explores ethical concerns for lawyers using AI, focusing on ABA Model Rules. She also discusses billing ethics, advising transparency in engagement letters and time tracking. Furthermore, Jayne highlights online civility, warning against impulsive posts and labeling, and real-life cases to underscore the importance of ethical vigilance in AI-integrated legal practice.

Join Jane and me as we discuss the following three questions and more!

1. What are your top three warnings to lawyers about using AI in line with the ABA model rules of ethics?

2. Some lawyers are creating DIY services online through chatbots, AI for clients, through chatbots and AI for clients to handle their legal affairs. What are the top three ethical concerns these lawyers should be wary of when creating these services?

3. What are your top three suggestions about lawyers being civil to one another and others online?

In our conversation, we cover the following:

[01:11] Jayne's Current Tech Setup

[04:50] Handling Tech Devices and Daily Usage

[08:51] Ethical Considerations for AI in Legal Practice

[19:21] Ethical Considerations for AI-Assisted Services

[26:37] Civility in Online Interactions

[30:58] Connect with Jayne

Resources:

Connect with Jayne:

• E-mail: jayne.reardon@fisherbroyles.com

• LinkedIn: linkedin.com/in/jaynereardon/

Hardware mentioned in the conversation:

• AirPods: apple.com/airpods/

• Apple Watch: apple.com/watch/

• iPad: apple.com/ipad/

• iPhone: apple.com/iphone/

• Mac: apple.com/mac/

• PC (Windows device): microsoft.com/en-us/windows

Software & Cloud Services mentioned in the conversation:

• LexisNexis AI: lexisnexis.com/en-us/gateway.page

• Westlaw AI: legal.thomsonreuters.com/en/products/westlaw-edge

* the “W-Calendar” program I refered to apparently is no longer an active software program available for purchase.

MTC: What is the common sense approach lawyers can learn from 23andMe’s recent client data breach?

What can 23andme’s client data breach teach lawyers about keeping their own client’s data secure?

I can’t stress enough that as legal professionals, we bear a dual responsibility when it comes to personal identification information (PII): safeguarding our own data and protecting our clients' sensitive information. 

The 23andMe Incident: A Wake-Up Call

Last week’s report of the 23andMe breach serves as a stark reminder of the vulnerabilities inherent in storing sensitive personal information online. Hackers gained access to user profiles, including genetic data, names, birth years, and ancestry report. This incident underscores the need for heightened awareness and caution when sharing personal identification information (PII) with online companies. THIS data breach serves as a perfect reminder of the critical importance of data security in our increasingly digital world, especially for those of us in the legal field.

Legal Ethics and Client Confidentiality

The cornerstone of the attorney-client relationship is confidentiality, extending far beyond our physical offices in today's digital age. We are bound by ethical rules mandating the protection of client information. The American Bar Association's Model Rule 1.6(c) explicitly states that "A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” But our legal ethics responsibilities just don’t stop there!

Even small law firms are not immune from cyberattacks!

ABA Model Rule 1.1 Comment 8 (Rule 1.1[8]) requires lawyers to stay informed about changes in the law and its practice, including the benefits and risks associated with relevant technology. This comment explicitly recognizes that competent representation in today's legal landscape involves understanding and effectively using pertinent technology. Lawyers must be aware of the security levels, general operational status, and potential risks and actual data breaches of the services and software they use, both in-office and cloud-based. While the goal isn't to transform lawyers into tech experts, it's crucial that we can leverage technology (even with the assistance of more technically proficient experts) to provide efficient, effective, and ethical legal services to our clients.

Implications of Data Breaches

The 23andMe incident highlights the potential consequences of a data breach, which for lawyers could include:

1. Violation of ethical obligations

2. Potential malpractice claims

3. Loss of client trust and reputation damage

4. Regulatory penalties and sanctions

Protecting Client and Our Own Information in the Digital Age

To fulfill our ethical obligations and protect our clients' PII, we must implement robust data security measures:

Secure Data Storage and Transmission

Utilize encrypted cloud storage solutions and secure file transfer protocols when handling client data. Avoid using public Wi-Fi networks for accessing or transmitting sensitive information. And if you do, be sure to use a reliable Virtual Private Network (VPN) when on public Wi-Fi.

Client Communication Practices

Lawyers need not be tech experts but they need to know how to use tech to not only for their clients but use it to protect their client’s Data.

Implement secure client portals for document sharing and communication. Educate clients on the risks of sending sensitive information via unsecured email, and advise them on what information should never be shared electronically.

Vendor Due Diligence

Carefully vet third-party service providers, ensuring they adhere to stringent data protection standards. This includes practice management software, e-discovery platforms, and cloud storage providers.

Here are Some Best Practices for Personal and Professional Data Protection

1. Implement strong authentication: Use multi-factor authentication for all professional and personal accounts. Consider using a password manager that creates and stores complex passwords.

2. Separate personal and professional online presence: Maintain distinct profiles and accounts for personal and professional use.

3. Regularly update security measures: Stay informed about the latest cybersecurity threats and update your protection strategies accordingly.

4. Minimize data sharing: Critically assess what personal information is truly necessary to share online, and refrain from providing sensitive data unless absolutely essential.

Lawyers Are Important Participants to the Future Legal Landscape 

The 23andMe breach raises important questions about the adequacy of current data protection laws. As legal professionals, we have a responsibility to:

1. Advocate for stronger data protection legislation: Support and contribute to the development of comprehensive data privacy laws that protect individuals and businesses.

2. Stay informed on data privacy regulations: Keep abreast of evolving laws such as The European Union's General Data Protection Regulation (GDPR) and California's Consumer Privacy Act (CCPA), and industry-specific regulations like Health Insurance Portability and Accountability Act (HIPAA).

3. Advise clients on data protection: Provide guidance on compliance with data protection laws and best practices for safeguarding sensitive information, including when to refrain from sharing certain types of data altogether.

maybe we don’t need to put all of our information on the internet?

The Fundamental Lesson: Some Data Should Never Be Shared

Perhaps the most crucial takeaway from the 23andMe incident is that certain types of information are so sensitive and personal that they may not belong in anyone else's hands, regardless of the security measures in place. This is particularly true for genetic data, which is immutable and deeply personal. As lawyers, we must critically evaluate what information truly needs to be shared or stored externally, always erring on the side of caution.

My Final Thoughts

The 23andMe incident serves as a critical reminder of the vulnerabilities inherent in our digital ecosystem and the importance of discerning what information should never be shared. As lawyers, we must be at the forefront of data protection efforts, not only to safeguard our own information but also to uphold our ethical obligations to our clients. By implementing robust security measures, staying informed about evolving threats and regulations, and advocating for stronger data protection laws, we can help mitigate the risks associated with sharing PII in our increasingly interconnected world.

In this digital age, protecting personal identification information is not just a matter of individual privacy—it's a fundamental aspect of legal ethics and professional responsibility. As tech-savvy lawyers, we must lead by example in implementing and promoting best practices for data security, ensuring that we maintain the trust and confidentiality that form the bedrock of our profession. Most importantly, we must always question whether certain information needs to be shared at all, recognizing that the best protection sometimes lies in not disseminating sensitive data in the first place.

MTC

🎙️ Episode #94, Mastering Legal Tech & Protecting Your Firm’s “Brand”: From WordPress to Trademarks with Andrea Sager!

Andrea Sager, Founder and CEO of Legalpreneur, is revolutionizing legal services for small business owners and attorneys. With experience as a BigLaw attorney, small business owner, and small business attorney, Andrea combines her passion for empowerment with expertise, ranking 27th among 40,000 trademark attorneys in the U.S., driving accessible, innovative legal solutions.

Throughout our conversation, Andrea explains why lawyers should trademark their work. Also, she provides essential podcasting tech tips and discusses strategies to stay compliant with State Bar rules and avoid UPL.

Join Andrea and me as we discuss the following three questions and more!

1. What are the top three reasons a lawyer needs to trademark their business, blog, or podcast?

2. What are your top three tech tips (hardware and software) to make your podcast stand out?

3. What are your top three tips for ensuring a lawyer does not encroach on State Bar scrutiny with UPL (Unauthorized Practice of Law), etc.?

In our conversation, we cover the following:

[00:08] Andrea's Current Tech Setup

[07:08] Top 3 Reasons Lawyers Should Trademark Their Business, Blog, or Podcast

[10:53] Tech Tips for Podcasting

[14:46] Ensuring Compliance with State Bar Rules

[19:53] Connect with Andrea

Resources:

Connect with Andrea:

• LinkedIn: linkedin.com/in/andrea-sager

• Website: andreasager.com/

• Website: thelegalpreneur.com/

Software & Cloud Services mentioned in the conversation:

• MyCase: mycase.com/

• Marketcircle Daylite: marketcircle.com/

• Riverside: riverside.fm/

• WooCommerce: woocommerce.com/

My Two Cents: Lessons from ABA's Formal Opinion 512 - A Follow-Up!

there will be many Collaborative discussions on ABA Formal Opinion 512's impact on legal practice!

This post is a follow-up to last week's editorial on my experience with the AI sessions at the American Bar Association's (ABA) 2024 Annual meeting. Today, I'll delve deeper into ABA's Formal Opinion 512 and explore its implications for legal practitioners.

Building on Prior Model Rules

ABA's Formal Opinion 512 builds on several foundational Model Rules of Professional Conduct. These include:

• Model Rule 1.1 (Competence): Lawyers must provide competent representation, which now explicitly includes understanding the benefits and risks associated with relevant technology.

• Model Rule 1.6 (Confidentiality of Information): Lawyers must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

• Model Rule 5.3 (Responsibilities Regarding Nonlawyer Assistance): Lawyers must ensure that nonlawyer assistants, including AI tools, comply with the professional obligations of the lawyer.

 Breakdown of ABA Formal Opinion 512 

Tech-savvy lawyer reviews ethical implications of AI under ABA Opinion 512.

 1. Competence

Formal Opinion 512 emphasizes that competence in legal practice now extends to a lawyer's understanding and use of technology. Lawyers must stay informed about changes in technology that affect their practice areas. This includes:

• Understanding AI Capabilities: Lawyers must understand the capabilities and limitations of AI tools they use.

• Continuing Education: Lawyers should engage in ongoing education about technological advancements relevant to their practice.

 2. Confidentiality

The opinion underscores the importance of maintaining client confidentiality when using AI tools. Key points include:

• Risk Assessment: Lawyers must assess the risks associated with using AI tools, particularly concerning data security and privacy.

• Vendor Due Diligence: Lawyers should conduct due diligence on AI vendors to ensure they comply with confidentiality obligations.

Lawyers will be Debating AI ethics and compliance for the foreseeable future!

 3. Supervision

Lawyers are responsible for supervising the AI tools and ensuring they are used ethically. This includes:

• Oversight: Lawyers must oversee the AI tools to ensure they are used appropriately and do not compromise ethical standards.

• Accountability: Lawyers remain accountable for the outcomes of AI-assisted tasks, ensuring that AI tools do not replace human judgment.

 4. Communication

Effective communication with clients about the use of AI is crucial. Lawyers should:

• Inform Clients: Clearly inform clients about the use of AI tools in their cases.

• Obtain Consent: Obtain informed consent from clients regarding the use of AI, especially when it involves sensitive data.

ABA's Formal Opinion 512 signals that AI is now essential in legal practice, but it also underscores the importance of maintaining ethical standards when using it.

Final Thoughts

ABA's Formal Opinion 512 is a significant step in ensuring that lawyers remain competent and ethical in an increasingly digital world. By emphasizing the need for technological proficiency, confidentiality, supervision, and clear communication, the ABA reinforces that staying updated with technology is not optional—it's a matter of maintaining one's bar license. Lawyers must embrace these guidelines to provide the best possible representation in the modern legal landscape.

Lawyers who do not keep up with the evolving AI landscape will be left behind by those who do!

🚨

Lawyers who do not keep up with the evolving AI landscape will be left behind by those who do! 🚨

My Two Cents: With AI Creeping Into Our Computers, Tablets, and Smartphones, Lawyers Need to Be Diligent About The Software They Use.

Lawyers need to be weary about the computer company behind the curtin as to what information they are taking from your data!

As Apple is anticipated to announce a new iPhone with AI baked into its operating system, lawyers, like Dorothy in the Wizard of Oz, can no longer stand idly by and trust that the person behind the curtain, i.e., the software creator or owner of their software product, is both trustworthy and not going to use the customer’s data in ways inconsistent with the data owners’ objectives or to protect their data personal identification information. Per ABA Model Rule 1.6(a), lawyers must reasonably ensure that their client’s Personal Identification Information (PII) is protected. And recent events are providing a bit of a minefield for not just lawyers.

I use a popular subscription service application called SetApp. It’s a subscription service that gives me access to over 240 applications. I use many of them daily. But one of its applications, Bartender (which helps clean up and manage your Mac computer’s toolbar), was recently but secretively purchased by a private company. The problem is that little is known about the company. There is a very legitimate concern that Bartender may be improperly using its customer’s computer data – apparently (but not confirmed to be) making unauthorized screenshots. (Note that this is not a critique of SetApp, but I am going to reevaluate my use of Bartender – here are some alternatives you may want to check out.) But this general concern does not end with just “unknown” Wizards.

Lawyers need to be weary about the computer company behind the curtin as to what information they are taking from your data!

It was recently discovered that Adobe changed customer's terms of service. Lawyers should be deeply concerned about Adobe's updated terms of use for Photoshop, which grant the company broad rights to access and remove users' cloud-stored content. This raises significant privacy and confidentiality issues, particularly for legal professionals handling sensitive client data under non-disclosure agreements (NDAs), protecting PII, and trial strategies. Adobe's ability to view and potentially mishandle files covered by NDAs could lead to damaging leaks and breaches of client trust. You can “opt out” of this by going to your account’s privacy settings, going to “Content analysis,” and making sure the “Allow my content to be analyzed by Adobe for product improvement and development purposes” option is not selected. You can also not upload your material to Adobe’s could service – these steps may provide an extra layer of protection, but no one is 100% sure.

As custodians of confidential information, lawyers have an ethical duty to safeguard client secrets. Adobe's overreaching policy raises significant concerns for the legal community. These concerns extend beyond software, as computer companies now integrate AI into their hardware systems.

Many Windows machines are developing their computers to work inherently with MS Windows' own AI, Copilot. At the time of this writing, Apple is expected to announce a new operating system with an AI built into it to work with its new M4 chip. In other words, hardware and software companies work together to have their machines work naturally with operating systems that have AI built into their software. The biggest concern that should be on lawyers' minds is how their data is being used to train a company’s AI. What protections are being built into the systems? Can users opt-out? What does this all mean for us lawyers?

This means that lawyers at any computer skill level must pay attention to the Terms of Service (ToS) for the computers and software they use for work. The warning signs are there. So, stay tuned to your Tech-Savvy Lawyer as we navigate through this together!

MTC

BOLO: Increased Solar Storms: A Potential Disruption for Lawyers!

Lawyers need to prepare their office tech for the increase of solar flares this year!

Recent solar disturbances have raised concerns about potential impacts on various aspects of modern life, including the legal profession. Lately, the sun has been exhibiting heightened activity, leading to powerful solar flares and coronal mass ejections (CMEs). These solar disturbances can trigger geomagnetic storms that may disrupt various technologies we rely on daily.  Such intense flares can impact radio communications, electric power grids, and navigation signals and pose risks to spacecraft and astronauts.

While solar storms are not uncommon, the current solar cycle is expected to reach its peak activity in 2024 and 2025. Experts predict an increased likelihood of severe geomagnetic storms, classified as G5 events, during this period.  So, what does this mean for the legal profession?

Potential Impacts on Legal Professionals

As lawyers, we heavily rely on technology for communication, research, document management, and court proceedings. A significant solar storm could potentially disrupt these essential tools and workflows.  Here are some examples:

lawyers can reduce the anxiety in their life by preparing their technology for the potential disruptions from Solar flares!

• Communication Disruptions: Solar storms can interfere with radio and satellite communications, affecting email, video conferencing, and phone systems. This could hinder communication with clients, colleagues, and courts.

• Power Grid Instability: Intense geomagnetic storms can induce currents in power lines, potentially damaging transformers and causing widespread power outages. Prolonged blackouts could severely impact law firm operations and court proceedings.

• Navigation System Failures: Solar storms can disrupt GPS and other satellite navigation systems, making it challenging for lawyers to attend court hearings, client meetings, or navigate to remote locations.

• Data and Document Access Issues: If power outages or communication disruptions occur, accessing online legal databases, cloud-based document management systems, and electronic case files could become problematic.

Preparing for Potential Disruptions

While the likelihood of a severe solar storm is uncertain, it's crucial for legal professionals to be proactive and have contingency plans in place:

• Contingency Planning: Developing comprehensive contingency plans for critical processes can help minimize disruptions. This includes having manual processes as backups for essential digital tasks and ensuring all team members are trained on these procedures.

• Data Backup: Regularly backing up data using multiple methods (cloud storage and physical backups) ensures that even if one system fails due to a surge or outage caused by geomagnetic activity, another can step in to prevent data loss. Don’t forget my “3-2-1” data backup strategy!

lawyers can take some proactive measures to secure their client’s information, office technology and their ethical responsibilties!

• Infrastructure Protection: Investing in surge protection devices and uninterruptible power supplies (UPS) can safeguard sensitive electronic equipment from sudden spikes in voltage during geomagnetic storms.

• Staying Informed: Monitoring space weather forecasts provided by organizations like the National Oceanic and Atmospheric Administration (NOAA) Space Weather Prediction Center enables firms to anticipate significant events and take preventative measures accordingly.

• Client Communication: Legal professionals should maintain open lines of communication with clients about potential risks to their cases or information due to technological disruptions from solar activity.

By being aware of the potential impacts of solar storms and taking proactive measures, lawyers can minimize disruptions to our practice and better serve their clients during these rare but potentially disruptive events.

Happy Lawyering!

My Two Cents: How President Biden’s Executive Order on AI Impacts the Practice of Law - it does and doesn't.

President Biden's recent Executive Order (Order) on Safe, Secure, and Trustworthy Artificial Intelligence marks a significant milestone in the governance of AI technologies. This comprehensive directive aims to establish robust standards for AI safety and security. Its goals include protecting privacy and civil rights while promoting innovation and protecting intellectual property rights. For attorneys, this announcement is of paramount importance as it directly impacts the practice of law, introducing new dimensions to legal compliance, ethical considerations, and the overall legal landscape. Legal innovators and industrialists like Jack Newton, CEO of CLIO, see this Order as an important step taken by the government: I am hopeful that the newly introduced AI legislation will not only uphold the highest standards of security and privacy but also ensure equitable access and unbiased application within legal frameworks.

Here is a summary of the impact it will have on lawyers:

AI Safety and Security:

The Order mandates developers of powerful AI systems to share safety test results and critical information with the U.S. government. For attorneys, this introduces a new layer of compliance and due diligence. Legal professionals will need to guide their clients through these requirements, ensuring that AI systems adhere to the mandated safety and security standards. This is particularly crucial for companies dealing with AI technologies that pose serious risks to national security or public health. Likewise, lawyers representing parties who have been harmed by a company's use of AI will need to know the latest in AI technology in order to advocate the best strategy for their clients.

Privacy and Data Protection:

With AI’s capability to extract and exploit personal data, the Order calls for heightened privacy protections. The directive’s emphasis on privacy-preserving techniques and evaluation of data collection practices necessitates an attorney’s thorough understanding of AI technologies and their implications on privacy. Attorneys will play a crucial role in advising clients on data protection strategies, ensuring compliance with privacy laws, and navigating the legal complexities of AI-driven data processing. Attorneys must also ensure their use of AI in their practice protects their client’s Personal Identifiable Information (PII).

Equity and Civil Rights:

The Order addresses the potential of AI to perpetuate discrimination and bias, particularly in sectors like housing, healthcare, and criminal justice. Legal professionals will need to stay vigilant, ensuring that AI systems employed by their clients do not result in discriminatory outcomes or violate civil rights. Likewise, Attorneys who are prosecuting parties using AI to discriminate against members of the public will need to have a solid understanding of how AI works in these matters.

Consumer Protection:

the president’s order will likley set forth new regulations and policies that will affect most practicing lawyers.

AI technologies can potentially transform consumer experiences but also raise concerns about potential harms and deceptive practices. The Executive Order calls for standards and best practices to detect AI-generated content and authenticate official communications. Attorneys working in consumer protection will need to familiarize themselves with these standards, advising clients on compliance, advising clients who are victims, and addressing potential legal challenges arising from AI-driven consumer interactions.

Immigration Law

Although the Order is not directly focused on immigration law, it could indirectly affect the field. One specific aspect of the Order calls for using existing authorities to expand the ability of highly skilled immigrants and nonimmigrants with expertise in critical areas, including AI, to study, stay, and work in the United States. This could lead to changes in visa criteria and processes, potentially affecting how immigration attorneys advise clients in the tech sector. The emphasis on AI could lead to a higher demand for skilled workers in this field, possibly influencing the landscape of employment-based immigration. Immigration lawyers may need to stay updated on any new policies or procedural changes resulting from this Order to guide their clients through the visa application process.

Supporting Workers:

The impact of AI on the workforce is a critical aspect of the Order. Attorneys specializing in labor law will find this directive particularly pertinent, as it addresses issues related to job displacement, workplace equity, and labor standards. Legal professionals will play a vital role in navigating the legal complexities of AI in the workplace, ensuring that workers’ rights are protected, and advising employer-clients on best practices to mitigate potential harms.

Promoting Innovation and Competition and Protecting Intellectual Property:

The Order emphasizes the need to maintain America’s leadership in AI innovation and competition. For attorneys working in intellectual property, technology, and antitrust law, this directive underscores the importance of fostering a competitive AI ecosystem while protecting intellectual property rights. Legal professionals will need to stay abreast of developments in AI technologies, advising clients on innovation strategies, and ensuring compliance with copyright, intellectual property, and antitrust laws.

Attorneys Working for the Government:

The Order will affect government attorneys twofold -

First, government attorneys must be abreast of the same issues discussed in this post, like any private attorney. Government attorneys basically have the same legal and ethical duties as private attorneys. They, too, have the same security, bias, privacy, civil rights, and intellectual property concerns private practitioners have with this Order.

Second, government attorneys will be tasked with ensuring that government agencies comply with enhanced AI safety and security protocols, protect privacy, advance equity, defend civil rights, and promote innovation while protecting intellectual property rights. They will also play a critical role in developing and enforcing guidelines for the ethical use of AI within federal operations, potentially influencing procurement processes and the deployment of AI in public services. Moreover, as the government seeks to lead by example in the responsible use of AI, these attorneys will be instrumental in setting precedents that could shape future AI governance across all sectors.

Conclusion:

Lawyers already have an ethical duty to stay abreast of technology advancements including ai.

It is not surprising that as AI continues to evolve, legal professionals will play a crucial role in guiding their clients through this complex terrain. But, the Order does not bring anything new to an attorney’s quiver of responsibilities. With or without the Order, attorneys already have the Model Rules of Professional Conduct to guide them on their duties around technology (including AI). The Rules require us to stay current on AI, its constant changes, and how it may impact their clients—whether attorneys are using AI to assist their clients or if their clients or those whom attorneys are advocating against are using AI in their business.  Reference Model Rules 1.1, 1.1[8], 1.3, 1.4 & 1.6.  So, don't let the Order serve as a starting point.  Let it serve as a reminder that we must stay competent in our use and understanding of technology as it applies to our work in the legal arena.

My Two Cents: If you are going to use ChatGTP and its cousins to write a brief, Shepardize!!!

AI does not replaced doing your homework! Shepardize!!!

An attorney in New York learned the hard way that ChatGPT is not a reliable source.  A lawyer representing a man in a lawsuit against an airline used an artificial intelligence (AI) program, ChatGPT, to assist in preparing a court filing. However, the AI-generated content turned out to be entirely fabricated. The lawyer cited nonexistent court decisions and quotations in his brief, which were not found by either the airline's lawyers or the judge. The lawyer admitted to using ChatGPT for legal research and claimed he was unaware of the program's potential for providing false information. The judge ordered a hearing to discuss potential sanctions. The incident highlights the debate among lawyers regarding the use of AI software and the need to verify information provided by such programs.

Chatgpt has been known to not only be wrong at times but also make up stuff!

I look at it this way: If your new clerk handed you their first draft, you would double-check the work and likely Shepardize the citations; I don’t think I have to preach that Shepardizing cases before filing a brief is usually the rule of thumb. Rule 1.1[8] requires attorneys to keep a reasonable understanding of the technology we use and how to use it. This inherently includes knowing technology's limitations and flaws. Something the NY attorney conceded he did not do with his use of ChatGTP.

Know the aba model rules and your state bar rules of ethics!

Rule 1.1 [1, 4 & 5] requires an attorney to act with competence. In this case, I have a feeling Mr. Schwartz did not follow this rule - he did not check his case law. I have some empathy for Mr. Schwartz.  But I also have a feeling the bar will not feel the same way.       

Happy Lawyering!!!

MTC.