Florida Bar Weighs Whether Lawyers Using AI Need Client Consent

Florida bar weighs whether lawyers using AI need client consent
Image: Kaylee Walstad, EDRM

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

“Florida lawyers might soon be required to get their client’s consent before using artificial intelligence on their legal matters.”  Karen Sloan, “Florida bar weighs whether lawyers using AI need client consent | Reuters (Oct. 16, 2023).  Ms. Sloan’s article reports that “Florida looks to be the first jurisdiction considering a consent rule for lawyers using AI.”

The Florida Bar has asked Florida attorneys to comment on a proposal.  Id.   The proposal is posted at Proposed advisory opinion on Lawyers’ and Law Firms’ Use of Generative Artificial Intelligence – The Florida Bar.  The Florida Bar’s website states:

There are no drafts for the committee’s consideration at this time. The proposed advisory opinion will address:

1) Whether a lawyer is required to obtain a client’s informed consent to use generative AI in the client’s representation;

2) Whether a lawyer is required to supervise generative AI and other similar large language model-based technology pursuant to the standard applicable to non-lawyer assistants;

3) The ethical limitations and conditions that apply to a lawyer’s fees and costs when a lawyer uses generative AI or other similar large language model-based technology in providing legal services, including whether a lawyer must revise their fees to reflect an increase in efficiency due to the use of AI technology and whether a lawyer may charge clients for the time spent learning to use AI technology more effectively;

4) May a law firm advertise that its private and/or inhouse generative AI technology is objectively superior or unique when compared to those used by other lawyers or providers; and

5) May a lawyer instruct or encourage clients to create and rely upon due diligence reports generated solely by AI technology?

 Proposed advisory opinion on Lawyers’ and Law Firms’ Use of Generative Artificial Intelligence – The Florida Bar. 

The ABA Model Rule and Maryland Attorneys’ Rules of Professional Conduct 1.1 have long included a requirement of competent representation.  Some states have adopted rules requiring technological competence.  40th State Adopts a Duty of Technological Competence – Is It a Good Idea?  It will be interesting to see what direction this proposal follows.

Author

  • Michael D. Berman

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.

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