News / Blog

On January 19, 2024, the Florida Bar (“the Bar”), backed by a unanimous endorsement by the Bar’s Board of Governors, issued an ethics opinion (Opinion 24-1) related to the topic of artificial intelligence (“AI”).[1] With the rise in popularity of ChatGPT and similar products, it is necessary for the legal community to take note and adapt to the changing landscape of the practice of law. The Bar began the advisory opinion by noting, “Lawyers may use generative artificial intelligence (‘AI’) in the practice of law, but must protect the confidentiality of client information, provide accurate and competent services, avoid improper billing practices, and comply with applicable restrictions on lawyer advertising.”[2] Regarding maintaining client confidentiality, the Bar asserted that attorneys must research “the program’s policies on data retention, data sharing, and self-learning.”[3] The Bar stressed that lawyers are responsible for their work product and must “develop policies and practices to verify that the use of generative AI is consistent with the lawyer’s ethical obligations.”[4] For example, the Bar shared the story of a federal judge in New York sanctioning “two unwary lawyers and their law firm following their use of false citations created by generative AI.”[5] The Bar noted that lawyers must not engage in improper billing practices due to the use of AI, including double billing.[6] The Bar further advised that chatbots “must comply with restrictions on lawyer advertising and must include a disclaimer indicating that the chatbot is an AI program and not a lawyer or employee of the law firm.”[7]  The Bar encouraged lawyers to “educate themselves regarding the risks and benefits of new technology.”[8]

Regarding confidentiality, the Bar stressed that it is recommended that attorneys “obtain the affected client’s informed consent prior to utilizing a third-party generative AI program if the utilization would involve the disclosure of any confidential information.”[9] The Bar went on to warn about “‘self-learning’” AI, and the potential for a client’s information to be revealed to third parties in response to future inquiries.[10] The Bar stated that ethics opinions related to other matters, including cloud computing and overseas paralegals, provide guidance to attorneys when using third-party generative AI programs.[11] The Bar’s focus is very much the protection of client confidentiality.[12] The Bar did note that “[i]f the use of a generative AI program does not involve the disclosure of confidential information to a third-party, a lawyer is not required to obtain a client’s informed consent pursuant to Rule 4-1.6.”[13]

Regarding oversight of generative AI, the Bar looked to Rule 4-5.3(a) and related ethics opinions regarding nonlawyer assistants.[14] As an initial matter, attorneys must ensure that the conduct of the AI program “is compatible with the lawyer’s own professional obligations[.]”[15] As noted above, a lawyer must also review the work done by the AI program, as they are responsible for the work product.[16] If a lawyer fails to verify the accuracy of the work product, he or she may be subject to discipline.[17] The Bar cautioned attorneys that “a lawyer should be wary of utilizing an overly welcoming generative AI chatbot that may provide legal advice, fail to immediately identify itself as a chatbot, or fail to include clear and reasonably understandable disclaimers limiting the lawyer’s obligations.”[18]

Regarding fees and costs, the Ethics Opinion made it clear that “a lawyer may not ethically engage in any billing practices that duplicate charges or that falsely inflate the lawyer’s billable hours.”[19] If an attorney wishes to charge a client for the use of generative AI, the applicable “standards require a lawyer to inform a client, preferably in writing, of the lawyer’s intent to charge a client the actual cost of using generative AI.”[20] If an attorney cannot determine the cost for a particular client, the charges should be accounted for as overhead and not prorated to the client.[21] The Bar closed the section on fees and costs by noting, “while a lawyer may charge a client for the reasonable time spent for case-specific research and drafting when using generative AI, the lawyer should be careful not to charge for the time spent developing minimal competence in the use of generative AI.”[22]

Finally, regarding advertising, the Bar again cautioned lawyers that they are responsible for the information provided by an AI chatbot.[23] It is imperative that attorneys who use chatbots on their websites make it clear that the prospective client is speaking to a chatbot.[24] Finally, the Bar noted, “Lawyers may advertise their use of generative AI but cannot claim their generative AI is superior to those used by other lawyers or law firms unless the lawyer’s claims are objectively verifiable.”[25] Thus, unless an attorney is utilizing Deep Thought from The Hitchhiker’s Guide to the Galaxy that can provide the answer to life, the universe, and everything, it is unlikely that an attorney will be able to make such a claim.[26]

As AI evolves and becomes more common throughout the legal field, it is important for lawyers and clients alike to understand the limits of the technology and the rules adopted by the Bar and courts related to its use. In closing its ethics opinion, the Bar noted, “lawyers should continue to develop competency in their use of new technologies and the risks and benefits inherent in those technologies.”[27]

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.[28]

[1] The Ethics Opinion can be found at https://www.floridabar.org/etopinions/opinion-24-1/ (last visited Aug. 6, 2024).

[2] Id., at *1.

[3] Id.

[4] Id.

[5] Id., at *2. For more information, see Mata v. Avianca, 22-cv-1461, 2023 WL 4114965, at *17 (S.D.N.Y. June 22, 2023).

[6] Id., at *1.

[7] Id.

[8] Id.

[9] Id., at *2.

[10] Id.

[11] Id., at *3.

[12] Id.

[13] Id., at *3-4.

[14] Id., at *4.

[15] Id.

[16] Id.

[17] Id.

[18] Id., at *5.

[19] Id., at *6.

[20] Id.

[21] Id.

[22] Id.

[23] Id., at *7.

[24] Id.

[25] Id.

[26] Douglas Adams, The Hitchhiker’s Guide to the Galaxy (New York, Harmony Books, 1980).

[27] Fla. Bar Ethics Op. 24-1, at *7.

[28] In case you were wondering, this blog post was written by a human, not AI.

Photo by Igor Omilaev on Unsplash