Here is my recent Daily Record column. My past Daily Record articles can be accessed here.
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From Resistance to Reality: Lawyers Can No Longer Ignore AI
Historically, our profession’s response to emerging technologies has been lukewarm at best, sometimes peppered with contempt. For many lawyers, technology was viewed as an unwelcome and unnecessary intrusion into their purposefully analog world.
However, as the pace of innovation accelerated, attitudes necessarily changed, with technology resistance proving futile and counterproductive. These shifts in perspective were often reinforced by timely ethics guidance, which helped clear the path for compliant technology adoption.
With the advent of generative artificial intelligence (AI), advancements have unfolded faster than ever before. During that time, I tracked the emergence of generative (AI) and the corresponding ethics opinions handed down by bar associations across the country. If you follow my column, you know that the rapidity of the response and the depth of the advice provided has been unprecedented and much-needed.
Jurisdictions have taken many approaches, with some providing general guidance, others drafting reports, and still others issuing ethics opinions. Texas, however, has taken a dual-pronged approach, releasing both a report and an ethics opinion.
In July of last year, I wrote about the “Interim Report to the State Bar of Texas Board of Directors,” authored by the Texas Taskforce for Responsible AI in the Law, which addressed the benefits and risks of AI and included recommendations for the ethical adoption of these tools.
Then, earlier this month, the Professional Ethics Committee for the State Bar of Texas released Opinion 705. In it, the Committee addressed the ethical issues raised under the Texas Disciplinary Rules of Professional Conduct when lawyers use generative artificial intelligence in the practice of law.
Notably, the Committee acknowledged that generative AI and technology, generally, are ever-changing. As a result, its guidance is “intended only to provide a snapshot of potential ethical concerns at the moment and a restatement of certain ethical principles for lawyers to use as a guide regardless of where the technology goes.”
The Committee’s roadmap for generative AI adoption did not differ significantly from that issued in other jurisdictions. Even so, it provided helpful steps for lawyers to take when choosing and adopting AI into their firms.
At the outset, technology competence, a necessary foundation for ethical AI implementation, was addressed. The Committee encouraged lawyers to be open-minded about technology that could reduce inefficiencies. AI clearly falls under that category but requires careful vetting prior to its adoption. Accordingly, lawyers intending to use AI in their firms “must have a reasonable and current understanding of the technology—because only then can the lawyer evaluate the associated risks of hallucinations or inaccurate answers, the limitations that may be imposed by the model’s use of incomplete or inaccurate data, and the potential for exposing client confidential information.”
The Committee provided a roadmap for implementation, offering suggested steps to take to ensure compliant AI adoption that preserves client confidentiality: 1) Acquire a foundational understanding of how the technology functions; 2) Review and, if necessary, renegotiate the terms of service the lawyer agrees to when using the generative AI tool; 3) Assess the generative AI tool’s data security measures, recognizing that even if user inputs aren’t intentionally shared, stored information may be vulnerable to hacking; and 4) Train lawyers and staff on the proper use of generative AI tools to safeguard client confidentiality.
The Committee cautioned lawyers about permitting AI tools to train on inputted data, highlighting the importance of understanding how a specific tool works, and suggested that in some cases, it may be advisable to obtain client consent before submitting confidential information as part of a query. The need to verify the accuracy of information provided by generative AI tools was also emphasized.
Finally, the Committee determined that generative AI fees can be passed onto clients as long as they’ve consented. Furthermore, lawyers can only charge for the time spent on a client’s matter and cannot charge for time saved due to the efficiency gains offered by generative AI software.
With ethical guidance widely available, nothing stands in the way of AI adoption. Bar associations nationwide have provided clear ethics guidance outlining how to choose and use generative AI responsibly. The roadmap is there—understand the technology, assess risks, protect client data, and ensure compliance. The time for skepticism has passed; now, the focus is on responsible, informed implementation. Moving forward, the choice isn’t whether to engage with AI but how to do so ethically and effectively.
Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at MyCase, CASEpeer, Docketwise, and LawPay, practice management and payment processing tools for lawyers (AffiniPay companies). She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.