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!

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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

My Two Cents: Lawyers Need to Remember to Navigate Ethical Boundaries When Using Listservs: ABA's Guidance on Client Information Sharing.

Lawyers need to maintain client confidentiality when talking with colleagues in online forums.

The legal profession's reliance on technology continues to grow, facilitating collaboration and knowledge sharing among practitioners. Listservs, e.g., the American Bar Association's (ABA) own “solosez”, serve as an excellent medium for lawyers to discuss day-to-day law office management concerns, legal issues, and even their own cases.  But, when doing so, lawyers must still remember to keep their (former or current) client’s confidentiality when using these public forums.

The ABA recently issued Formal Opinion 511 to address ethical concerns surrounding the dissemination of client information on listservs and similar platforms.  The opinion emphasizes the need for lawyers to exercise caution when discussing client matters online, even in closed forums intended for professional discourse. Revealing confidential client information without proper consent can violate the duty of confidentiality enshrined in Model Rule 1.6.

While listservs offer a valuable resource for seeking guidance from peers, the ABA underscores that lawyers must refrain from disclosing information that could reasonably lead to the identification of a client. This includes details about the client's identity, legal issues, or other specifics that may compromise confidentiality.  But to emphasize the point of the opinion, it’s not just keeping confidential the identity, legal issues, or other specifics that may compromise confidentiality; this includes any information that could reasonably lead to the identification of a client.

To strike a balance between confidentiality and the benefits of professional collaboration, the opinion suggests several best practices:

Lawyers need to maintain client confidentiality with even some of the most minute details if it could “reasonably” reveal the client when talking with colleagues in online forums.

• Anonymization: Lawyers should carefully anonymize client information by removing identifiers and altering specific facts to prevent inadvertent disclosure;

• Client Consent: Obtaining the client's informed consent before sharing any details about their matter is the safest approach, though not always practical.

• Forum Vetting: Evaluate the listserv's membership, policies, and security measures to ensure it provides adequate safeguards against unauthorized access or dissemination of shared information.

• Contextual Consideration: Assess the sensitivity of the client's matter and the potential risks of disclosure before deciding whether to share information on a listserv.

In today’s social media age, it is easy for people to feel anonymous online. This can lead some people to let their safeguards down and reveal too much personal information. Or, quite frankly, say things they would not say to others in public.  Lawyers, too, need to ensure they are not revealing client information that may breach their ethical obligations to their clients (both current and former).

So, I’d like to repeat myself from above, while digital platforms facilitate knowledge sharing and professional development, lawyers must exercise vigilance to protect client confidentiality.  By adhering to the ABA's guidance and implementing robust safeguards, lawyers can leverage the benefits of online collaboration while upholding their ethical duties. Striking this balance is crucial for maintaining public trust and preserving the integrity of the legal profession in the digital age.

MTC.

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.