[Editor’s Note: EDRM is proud to publish the advocacy and analysis of the Hon. Ralph Artigliere (ret.). The opinions and positions are those of Judge Artigliere (ret.). © Ralph Artigliere, August 31, 2024.]
Generative AI is rapidly transforming the landscape of legal and judicial practice, raising complex ethical questions that demand thoughtful regulation. Recognizing this, on August 29, 2024, the Florida Supreme Court took a significant step by amending the Rules Regulating the Florida Bar to address the ethical use of generative AI by lawyers. These changes mark a forward-thinking approach to managing AI’s impact on the legal profession. Were these amendments necessary? Absolutely. Were they implemented effectively? Yes. This article explores why these changes are crucial and what every lawyer needs to understand about them.
The Rise of Generative AI Power in Legal Workflow
Generative AI is more than just a new trend; it’s a transformative technology with profound implications for legal practice. AI is not new to lawyers or the support systems and vendors that assist in managing their practices and tasks, but generative AI represents a giant step forward, bringing both opportunities and challenges.
Unlike traditional AI, which identifies patterns and makes decisions based on existing data, generative AI uses advanced machine learning to create original content, such as text and images. This technology has transformative potential in legal practice, where vast amounts of data require careful management, analysis, and the precise application of rules and judgment. Generative AI can streamline tasks like drafting documents and conducting research, enhancing both efficiency and decision-making processes.
Risks and Ethical Concerns
However, these benefits come with risks. Generative AI can produce biased or misleading content, potentially affecting case outcomes. Using these products without careful attention to terms of use regarding information provided to the platform can result in breaching client confidentiality. The legal industry is seeing a surge in AI-driven tools, ranging from comprehensive platforms to accessible models like OpenAI’s ChatGPT. While these tools promise increased efficiency, their misuse—such as drafting legal briefs without verifying sources—underscores the necessity for proper understanding and ethical use. If an AI tool incorrectly cites case law or leaks confidential client information, the consequences could be severe for both the lawyer and their client.
Given the rapid development of this technology and its significant impact on legal practice, responsible regulation is essential. Regulatory bodies must craft guidelines that protect against risks without stifling innovation, striking a balance that allows lawyers to leverage AI effectively and ethically. Recognizing these opportunities and risks, The Florida Bar proposed, and the Florida Supreme Court adopted, amendments that reflect this measured approach, guiding legal professionals in navigating the evolving landscape of AI in their practice.
Florida is Taking a Leading Role in AI
Like many state bar associations and courts, The Florida Bar and the Florida Supreme Court are understandably monitoring the rise in the use of generative AI products by lawyers and judges. Earlier this year, The Florida Bar released Ethics Opinion 24-1 (“Opinion 24-1”) regarding the use of generative artificial intelligence (“AI”) in the practice of law. Opinion 24-1 is based on existing universal ethical rules and standards, which the opinion recognized and applied to current issues with generative AI. I thought that effort was a good step for Florida lawyers and one that would be helpful for other jurisdictions and Bar associations looking to issue guidance. See Florida’s New Advisory Ethics Opinion on Generative AI Hits the Mark found here.
Ethics Opinions like Ethics Opinion 24-1 are advisory and not binding. Changing the ethical rules is another matter.
The Hon. Judge Ralph Artigliere (ret).
Ethics Opinions like Ethics Opinion 24-1 are advisory and not binding. Changing the ethical rules is another matter. The rules establish ethical standards that lawyers must adhere to, ensuring they maintain integrity, competence, and professionalism in their practice. Rules of ethics shape professional conduct and responsibilities of lawyers to each other, their clients, the public, and the system of law. They also have a disciplinary component to ensure compliance and maintain the integrity of the legal profession. Accordingly, changing the rules will have a greater impact on the overall practice environment and should be adopted with careful consideration.
In the matter of technological innovation, undue or excessive regulation can stifle innovation and growth. The dizzying change brought about by the emergence of generative AI since November of 2022 poses challenges for regulation of the profession of law. Leaders in state bar associations and courts must adapt professionalism standards to the evolving landscape. At the same time, they want to ensure that lawyers have access to tools that make their practices more efficient and allow for sound judgment in methodology and workflow. The key is to keep the rules fresh and relevant with only necessary and measured change. In my opinion that is exactly what The Florida Court did.
The Ethical Rule Amendments
The Florida Bar petitioned the Florida Supreme Court proposing amendments to Chapter 4 of the Rules Regulating The Florida Bar, the ethical rules governing Florida lawyers. Among the proposals were changes to the rules and comments on lawyer responsibilities when using generative AI. The Florida Bar’s Board of Governors approved the proposed amendments, and the Bar published the proposed amendments for comment in The Florida Bar News. No comments were received. All of the proposed changes involving Generative AI were adopted by the Court in a unanimous opinion, IN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR – CHAPTER 4, 2024 Fla. LEXIS 1373 (Fla. August 29, 2024) also available here. The amendments are effective October 28, 2024.
All of the proposed changes involving Generative AI were adopted by the Court in a unanimous opinion, IN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR – CHAPTER 4, 2024 Fla. LEXIS 1373 (Fla. August 29, 2024) also available here.
The Hon. Judge Ralph Artigliere (ret).
In addition to various grammatical changes, the Court amended the Comments to rules 4-1.1, 4-1.6, 4-5.1, and 4-5.3, adding a warning about the necessity to take care in using generative artificial intelligence. The changes were made to comments in the following rules with the new language underlined below:
Comment to RULE 4-1.1 COMPETENCE:
Maintaining Competence
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education, including an understanding of the benefits and risks associated with the use of technology, including generative artificial intelligence, and comply with all continuing legal education requirements to which the lawyer is subject.
Comment to RULE 4-1.6. CONFIDENTIALITY OF INFORMATION:
Acting Competently to Preserve Confidentiality
Paragraph (e) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See rules 4-1.1, 4-5.1 and 4-5.3. For example, a lawyer should be aware that generative artificial intelligence may create risks to the lawyer’s duty of confidentiality. … .
Comment to: RULE 4-5.1. RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS:
Subdivision (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property, consider safeguards for the firm’s use of technologies such as generative artificial intelligence, and ensure that inexperienced lawyers are properly supervised.
Comment to: RULE 4-5.3. RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS:
Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals such as paralegals and legal assistants. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client. A lawyer should also consider safeguards when assistants use technologies such as generative artificial intelligence. … .
Nonlawyers Outside the Firm
A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, using generative artificial intelligence, and using an Internet-based service to store client information. When using these services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. … .
These changes underscore the need for continuous adaptation and vigilance as the legal community navigates the evolving challenges posed by new technologies.
The Impact of Amending Ethical Rules
The Florida Bar and the Court took a forward-thinking but measured approach to Generative AI. Especially in the professional world, undue hype and carelessly using tools with potential down issues like hallucinations, bias, and data insecurity are dangers to lawyers, their clients, and the courts. But careful and effective use is possible, the tools are improving all the time, and there is no way the AI advantage is a passing fad. For those reasons, it is important that regulation of use of generative AI be targeted and measured. Ethical rules should highlight the responsibility without throwing a wet blanket on the fire of learning and progress. The changes made by the Florida Court are right in line with what is needed.
Hopefully, amendments like this will spur a discussion in the legal community and raise awareness of the benefits as well as the risks of new technology. Likewise, lawyers should understand and comment when necessary on the regulations that affect them and their profession. Stay informed about technological advancements and engage in discussions about ethical standards. Dialogue is good for all of us.
Were the New Rules Necessary?
Some will say that the amendments specifically mentioning generative AI were not needed as they are covered by existing rules, including the Comment to Rule 4-1.1 requiring lawyers to be competent in technology. Yes, the existing rules already require the competence, diligence, and responsibilities that use of other technologies already in widespread use. Careless or uninformed use of Generative AI is no different from cloud computing or use of other products without confidentiality safeguards. However, since generative AI is still in its infancy, lawyers are still making mistakes despite the current rules, previous ethical guidance, and widespread coverage of missteps.
The rule changes made by Florida are in the comments, not the rules themselves. There is no downside to adding the careful wording in the comments as the Court did here, and hopefully publicizing and enforcing these rule changes will broaden the understanding of the potential consequences of careless use of technology tools. Whether the new language is needed to clarify and enforce the rules is probably less important than the value of informing The Bar of their ethical responsibilities as to generative AI.
CONCLUSION
I applaud the Florida Bar Association and Supreme Court for their approach to a growing problem existing in the wake of the Generative AI juggernaut: lawyer apathy, ignorance, or abuse of a valuable tool with a tremendous upside but the potential for harm if not carefully and ethically employed in law practice. Measured steps in ethical rules and guidance at this early stage of development of the technology will allow progress to occur with guidance and guardrails that keep lawyer use within safe ethical bounds.
August 31, 2024 © Ralph Artigliere. ALL RIGHTS RESERVED (Published with permission.)
Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.
