ABA Opinion 512 - Generative Artificial Intelligence Tools

Attorney-client privilege is a cornerstone of the legal profession, providing clients the essential opportunity to communicate openly with their counsel. This privilege allows lawyers to gather all pertinent information from clients, enabling them to utilize all available resources for the best representation. At its heart is the duty of confidentiality, a principle enshrined in the American Bar Association (ABA) rules and upheld by legal practitioners.

Traditionally, safeguarding confidentiality was more straightforward, with legal information stored in physical files or secure digital spaces. However, the rapid advancement of technology has introduced new challenges. Lawyers now turn to tools like artificial intelligence (AI) to streamline research and enhance efficiency while managing increasingly high caseloads.

While AI brings significant advantages, it also presents risks. As with any technology, there is the potential for data breaches, accidental or deliberate. Legal professionals must, therefore, remain vigilant and use these tools responsibly, ensuring robust safeguards to protect client information. By doing so, they can benefit from innovation without compromising the sanctity of attorney-client privilege.

ABA Formal Opinion 512 underscores the duty of confidentiality under Model Rule 1.6 about generative artificial intelligence (Gen AI) tools. Lawyers must ensure that client information is not disclosed without informed consent, implied authorization, or a specific exception. The opinion warns against the risks of inputting client data into Gen AI systems, potentially exposing confidential information to unauthorized parties. To mitigate this risk, lawyers must obtain informed consent from clients when using Gen AI tools for sensitive information. This consent should clearly outline the risks, including potential data disclosures. Furthermore, lawyers must evaluate Gen AI tools' privacy policies, terms of use, and security measures to ensure proper data protection. A fact-driven analysis is essential, as the confidentiality risks vary depending on the tool, the client, and the specific task.

The opinion also highlights the potential for internal data leaks when using self-learning Gen AI tools, which may unintentionally share information between cases or with unauthorized individuals within the firm. Consulting with IT and cybersecurity experts may be necessary to understand these tools' data protection capabilities fully. However, when Gen AI is used for general tasks that don’t involve client-specific information, informed consent may not be required.

The opinion distinguishes between using Gen AI tools for general versus client-specific tasks. For general tasks, such as drafting standard documents or conducting non-client-specific research, lawyers can use Gen AI tools without client consent, enhancing efficiency without risking confidentiality. For more complex, client-specific tasks, informed consent ensures ethical compliance, safeguarding sensitive data while leveraging AI’s capabilities. This balance enables lawyers to remain efficient and ethically sound as technology evolves.

The legal profession stands at a crossroads in this rapidly changing technological landscape. The integration of AI offers tremendous potential for efficiency and innovation, but it must be balanced with the ethical responsibility of protecting client confidentiality. Lawyers must remain vigilant, adapting their practices to new challenges without compromising the core principles that define their profession. By embracing technological advancements thoughtfully and maintaining strict ethical standards, legal professionals can uphold the integrity of attorney-client privilege while leading the way in shaping the future of law. In doing so, they protect their clients and preserve the trust upon which the entire legal system is built.

By guest writer Evelina Dash.