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| Steven Lerner covers legal technology for Law360 Pulse |
Existing model rules related to competency, informed consent, confidentiality and fees apply to AI, according to the ABA's formal opinion published on July 29. The opinion came after some states, including California and Florida, published guidelines for generative AI usage in late 2023 and early 2024.
The push for guidelines comes as legal professionals are still getting accustomed to the terminology associated with AI, which involves computers performing more advanced tasks. Generative AI refers to a type of model capable of creating original content.
"Generative AI is a very hot topic, but the vast majority of attorneys in the U.S. still have no idea what that is," Jordan Turk, an attorney and legal technology adviser for the legal platform Smokeball, told Law360 Pulse. "They don't know about data scraping. They don't know about confidentiality concerns with regard to that."
Turk said it is important for state bars to address AI because it signals to attorneys that they need to pay attention to the intricacies of this new technology.
In 2012, the ABA revised its model rules to include an ethical duty of technology competency. Forty state bars have since adopted tech competency rules, the most recent being Hawaii in 2022. Yet, 12 years later, there are still several holdout state bars.
"State bars, in my opinion, have to be more proactive about things like that," Turk said.
While an important first step, the ABA's AI guidelines were not as specific as some of the guidelines a few state bars previously released.
The California bar released guidelines in November about using AI in the legal field, addressing topics such as nonlawyer supervision and billing. The State Bar of Michigan issued an opinion on judges' use of AI around the same time.
By early 2024, the Florida bar released its guidelines concerning the ethical use of AI by attorneys. In April, New York's bar released a set of AI recommendations and commissioned an advisory panel to study the use of AI in the justice system. A few weeks later, a task force with the New Jersey bar released a report on AI usage.
The state bars in Pennsylvania and North Carolina have also drafted ethics opinions on AI.
It's not a coincidence that the largest state bars were the first to release AI guidelines, because they often have more resources to spend on a task force and research, according to Turk. Smaller state bars might be waiting for the larger state bars to release them first.
The first wave of guidelines mostly deals with the practice of law, partly due to the growing number of standing orders on AI from judges.
State bars are also addressing concerns about the business of law, such as Florida's with its guidelines, which require attorneys to inform clients about the actual cost of using generative AI. Turk said that the next wave of AI guidance should include deeper suggestions, such as specific language that firms can use to speak to clients about AI and how to bill for the use of AI.
Generative AI is evolving at a rapid pace. OpenAI released ChatGPT using a model called GPT-3.5 in November 2022, published an advanced model called GPT-4 in March 2023 and followed up with a new version called GPT-4o in May 2024.
With new releases of models all the time, some state bars may be hesitant to release guidelines because of concerns about them being outdated. State bars that already published guidelines might revise them because of the newer models.
Still, several forces are pushing some state bars to advance generative AI guidelines.
Turk said that state bar members are getting excited about AI because of all the hype on display at legal technology conferences.
Highly publicized instances of lawyers using generative AI to submit briefs with fake cases are also persuading state bars to establish guidelines for AI usage.
"Another problem that I'm seeing too is that some firms and some attorneys have been using generative AI or ChatGPT with reckless abandon, and meanwhile the managing attorney has no idea what that even is," Turk said.
What could force more state bars to focus on AI regulations? More education in the form of CLE credits could help. Ultimately, it might take individuals within those state bars to actively push for new guidelines.
Turk expects more state bars to set up a task force to study AI, which could eventually result in the promulgation of new policies that firms can adopt. These new policies should go beyond boilerplate AI regulations by including sample AI policies for law firms on topics such as fee arrangements and billing.
More state bars will eventually publish AI opinions. Concrete regulations on AI in the legal field will come many years into the future.
Turk predicts the next wave of states with AI guidelines will include more tech-forward bars such as those in Minnesota, Nebraska and Colorado.
It's been over a decade since the ABA released guidelines on tech competency and only 40 states have adopted these procedures. Let's hope state bars move faster on AI.
--Additional reporting by Sarah Martinson, Emma Cueto, Emily Sawicki and Jake Maher. Editing by Robert Rudinger.
Technically Speaking is a column by Steven Lerner. The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates.
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