The opinion addresses the ethical considerations lawyers are required to consider when using generative AI (GenAI) tools in the practice of law.
The opinion sets forth the ethical rules to consider, including the duties of competence, confidentiality, client communication, raising only meritorious claims, candor toward the tribunal, supervisory responsibilities of others, and setting of fees.
Competence
The opinion reiterates previous ABA opinions that lawyers are required to have a reasonable understanding of the capabilities and limitations of specific technologies used, including remaining “vigilant” about the benefits and risks of the use of technology, including GenAI tools. It specifically mentions that attorneys must be aware of the risk of inaccurate output or hallucinations of GenAI tools and that independent verification is necessary when using GenAI tools. According to the opinion, users must evaluate the tool being used, analyze the output, not solely rely on the tool’s conclusions, and cannot replace their judgment with that of the tool.
Confidentiality
The opinion reminds lawyers that they are ethically required to make reasonable efforts to prevent inadvertent or unauthorized access or disclosure of client information or their representation of a client. It suggests that, before inputting data into a GenAI tool, a lawyer must evaluate not only the risk of unauthorized disclosure outside the firm, but also possible internal unauthorized disclosure in violation of an ethical wall or access controls. The opinion stressed that if client information is uploaded to a GenAI tool within the firm, the client data may be disclosed to and used by other lawyers in the firm, without the client’s consent, to benefit other clients. The client data input into the GenAI tool may be used for self-learning or teaching an algorithm that then discloses the client data without the client’s consent.
The opinion suggests that before submitting client data to a GenAI tool, lawyers must review the tool’s privacy policy, terms of use, and all contractual terms to determine how the GenAI tool will collect and use the data in the context of the ethical duty of confidentiality with clients.
Further, the opinion suggests that if lawyers intend to use GenAI tools to provide legal services to clients, lawyers are required to obtain informed client consent before using the tool. The lawyer is required to inform the client of the use of the GenAI tool, the risk of use of the tool and then obtain the client’s informed consent prior to use. Importantly, the opinion states that “general, boiler-plate provisions [in an] engagement letter” are not sufficient” to meet this requirement.
Communication
With regard to lawyers’ duty to effectively communicate information that is in the best interest of their client, the opinion notes that—depending on the circumstances—it may be in the best interest of the client to disclose the use of GenAI tools, particularly if the use will affect the fee charged to the client, or the output of the GenAI tool will influence a significant decision in the representation of the client. This communication can be included in the engagement letter, though it may be appropriate to communicate directly with the client before including it in the engagement letter.
Meritorious Claims + Candor Toward Tribunal
Lawyers are officers of the court and have an ethical obligation to put forth meritorious claims and to be candid with the tribunal before which such claims are presented. In the context of the use of GenAI tools, as stated above, there is a risk that without appropriate evaluation and supervision (including the use of independent professional judgment), the output of a GenAI tool can sometimes be erroneous or considered a “hallucination.” Therefore, to reiterate the ethical duty of competence, lawyers are advised to independently evaluate any output provided by a GenAI tool.
In addition, some courts require that attorneys disclose whether GenAI tools have been used in court filings. It is important to research and follow local court rules and practices regarding disclosure of the use of GenAI tools before submitting filings.
Supervisory Responsibilities
Consistent with other ABA Opinions relevant to the use of technology, the opinion stresses that managerial responsibilities include providing clear policies to lawyers, non-lawyers, and staff about the use of GenAI in the practice of law. I think this is one of the most important messages of the opinion. Firms and law practices are required to develop and implement a GenAI governance program, evaluate the risk and benefit of the use of a GenAI tool, educate all individuals in the firm on the policies and guardrails put in place to use such tools, and supervise their use. This is a clear message that lawyers and law firms need to evaluate the use of GenAI tools and start working on developing and implementing their own AI governance program for all internal users.
Fees
The key takeaway of the fees section of Opinion 512 is that a lawyer can’t bill a client to learn how to use a GenAI tool. Consistent with other opinions relating to fees, only extraordinary costs associated with the use of GenAI tools are permitted to be billed to the client, with the client’s knowledge and consent. In addition, the opinion points out that any efficiencies gained by the use of GenAI tools, with the client’s consent, should benefit the client through reduced fees.
Conclusion
Although consistent with other ABA opinions related to the use of technology, an understanding of ABA Opinion 512 is important as GenAI tools become more ubiquitous. It is clear that there will be additional opinions related to the use of GenAI tools from the ABA as well as state bar associations and that it is a topic of interest in the context of adherence with ethical obligations. A clear message from Opinion 512 is that now is a good time to consider developing an AI governance program.
ABA Formal Opinion 503 focuses on ABA Model Rule 4.2, often referred to as the “no-contact” rule. Under this model rule, a lawyer who is representing a client may not communicate about the subject of the representation with a represented person absent the consent of that person’s lawyer unless the law or court order authorizes such as communication. Most states’ codes of professional legal ethics draw heavily upon the ABA Model Rules, so many states have similar “no-contact” rules for lawyers.
The new formal opinion states that lawyers would not be deemed to violate ABA Model Rule 4.2 if they send a “reply all” response to a group email or text sent by an opposing counsel, even if that communication includes the opposing counsel’s client. The opinion states that, “[a]bsent special circumstances, lawyers who copy their clients on emails or other forms of electronic communication to counsel representing another person in the matter impliedly consent to a ‘reply all’ response from the receiving counsel,” the opinion said. “Accordingly, the reply all communication would not violate Model Rule 4.2.”
As a practical matter, Formal Opinion 503 provides a number of options to lawyers who wish to avoid creating an implied presumption of consent to such “reply all” communications from opposing counsel to their clients. These options include:
forwarding the electronic communication separately to the client without including opposing counsel as an addressee,
informing receiving counsel expressly and in advance that including the client on the electronic communication does not constitute a consent to a “reply all” response, or
sending the communication through other means (such as a mailed hard copy letter) where different norms are in place regarding responding to all addressees.
The full text of ABA Formal Opinion 503 is available here.
The stakes are high for the 2020 Election. The nation is deeply divided politically, and a global pandemic is upending daily life. At this time of unrest, a smooth and efficient election process is crucial. The ABA (American Bar Association) is encouraging lawyers and law students to volunteer as poll workers to perform an important civic duty during a difficult time.
“Long wait lines at polling places or unexpected delays in getting election results counted can add to a distrust of the system . . .We hope lawyers and law students step up to help make this election run smoothly and efficiently. I have volunteered as a poll worker here in Phoenix, and I hope this initiative inspires others to join me.”
COVID-19 Creates Adds Challenges to Poll-Worker Recruitment
Law students and younger attorneys may have an increased role this year. Poll workers in the United States are generally older Americans. In 2018, 58% of poll workers were 61 or older, according to the Election Assistance Commission, and over 25% are 71 or older. Even without underlying medical conditions, this is an age group that has an increased vulnerability to the Coronavirus. Many in this age group are choosing to sit 2020 out due to concerns about their health and coming into contact with a large number of people at a polling location, and younger poll workers can help undercut a shortage. To this end, the ABA Young Lawyers Division and the Law Student Division have joined the initiative. This could provide many younger attorneys and law students with the opportunity to provide an important civic service and ensure a smooth, efficient election experience for voters.
Law Firm Involvement and Election Day Time Off
Many big law firms are providing a paid day off for their employees and attorneys on election day. Mintz, Jenner & Block, Hogan Lovells and many more firms have announced plans to make election day a paid holiday to encourage employee voting and volunteering in election-related activities. Fenwick & West indicated their voting push will include “volunteer and community service opportunities for people to engage in nonpartisan election activities—including get-out-the-vote letter-writing campaigns, hosting and staffing an Election Protection call center, poll monitor training and support, and supporting nonpartisan organizations working for voter protection, registration and outreach.”
The ABA’s Push for Attorneys as Poll-Workers
To encourage the effort, the ABA has released a video (watch it below) which details the sign-up process. Additionally, a social media campaign on Twitter, Linkedin and Facebook with the hashtag #PollworkerEsq encourages lawyers and law students to volunteer. Work may include staffing polling places, opening ballot envelopes, comparing signatures and helping election officials tabulate the results. The requirements and work vary across the country, as elections are managed by local entities, but attorneys and law students may be particularly suited to the work. Additionally, in some instances, poll worker training for lawyers may be eligible for CLE (Continuing Legal Education) Credit.
With all the uncertainty and confusion surrounding the election process, especially with the challenges created by COVID-19, this year is an election like no other in recent memory. Regardless of the political fights playing out, the ability to cast a vote is a crucial piece, and it is important for everyone. Refo says, “there is no question that maintaining the integrity and efficiency of our electoral process is important to all lawyers.”
Those interested can go to canivote.org, a website set up by the National Association of Secretaries of State, for more information. The importance of voting and active bipartisan civic engagement is crucial to a healthy democracy, so if volunteering as a Poll-worker isn’t an option, it’s important to check your voter registration and make sure you have a voting plan in place. As Thomas Jefferson said, “We do not have government by the majority. We have government by the majority who participate.”
As we move into fall, the National Law Review’s editorial team takes a look at the constantly evolving legal industry landscape—paying special attention to law firm hires, attorney awards and law firm innovation.
Law Firm Moves & Hires
Securities attorney Paul McCurdy joined Katten’s Financial Markets and Funds group as a Partner in New York. Before joining Katten, McCurdy led the broker-dealer regulatory practice for over 20 years at his previous firm, and he also previously served as an executive committee member and as the firm’s chairman.
In his practice, McCurdy represents investment banking, retail, clearing and direct broker-dealers and advisory firms in regulatory and enforcement matters. He has defended witnesses in over 200 interviews before the Securities and Exchange Commission, the Financial Industry Regulatory Authority and the Department of Justice.
“Katten is a solid leader in the financial services industry, well-known as a one-stop resource with a deep bench of talent and some of the most experienced litigation and regulatory enforcement attorneys there are,” McCurdy said.
“John and Roxanne join our national team at an extremely opportune time,” said Michael L. Stevens, labor & employment practice leader. “Since the start of the year, our clients have increasingly sought our counsel as the COVID-19 pandemic has forced them to shift their business and employment strategies and operations. Now, we’re starting to see a growing number of disputes with employees on a variety of fronts and adding John and Roxanne will strengthen our support for clients in California and across the country.”
Wilson focuses her practice on advising clients on employment-related class actionsregarding drug and alcohol policies, sick leave, employment application and wage and hour issues.
Grant Schneider joined the Washington, D.C. office of Venable as the senior director of cybersecurity services. Previously, Schneider was the federal chief information security officer for the White House Office of Management and Budget. He also served as the senior director for cybersecurity policy on the White House National Security Council.
During his time working for the federal government, Scheider oversaw the review of the government’s cybersecurity enterprise and worked with Congress on the SECURE Technology Act which established the Federal Acquisition Security Council.
“Grant joins us from a distinguished career in the federal government, where he led numerous initiatives that were pivotal to managing risk and enhancing our national cybersecurity, not least of which was his recent work on supply chain security, encryption, and identity management. We look forward to welcoming him to our team and leveraging this experience in service to our clients,” said Ari Schwartz, managing director of cybersecurity services at the firm.
Schneider also worked as the senior director for cybersecurity policy for the National Security Council, helping gain presidential approval for the first National Cyber Strategy in more than 15 years.
“Venable presented the rare opportunity to work with some of the nation’s leading minds in shaping the future of cybersecurity from within the private sector. I have spent my nearly 28 years of government service implementing innovative programs and policies on a national scale and am eager to stretch these muscles in new ways to advance the cybersecurity goals of the firm’s clients,” Schneider said.
Marc Boiron and Rebecca Rettig joined Manatt law firm as partners in the firm’s financial services group and fintech practice. Boiron will be based out of the firm’s Los Angeles office and Rettig is joining the firm’s New York office.
Boiron, a leading corporate lawyer and blockchain and virtual currency advisor, has experience guiding clients through issues such as token distributions, regulatory compliance and financings. Boiron is admitted in California and Delaware and advises companies on governance and corporate issues.
Rettig was recognized as one of the top 100 women lawyers in New York City by Crain’s New York Business, and represents blockchain and virtual currency companies in litigation and private arbitrations. She works with Fortune 100 companies on securities, shareholder derivative and contract disputes.
“We were really drawn to Manatt due to its groundbreaking approach to client services, which blends legal and business advisory services, as well as its bench of nationally recognized lawyers, consultants and technologists,” said Boiron. “We believe that the firm’s hybridized platform and collaborative culture will resonate with and be an invaluable resource for our clients as they prepare to tackle any challenge they may face in today’s new, and unprecedented, economy,” Rettig added.
“I am very pleased to welcome Maja to the team. She is a talented lawyer with significant experience in some of the most complex bankruptcy cases and restructuring matters,” said Michael Messersmith, chair of the Bankruptcy and Restructuring group at Arnold & Porter. “Maja’s expertise, energy and business-focused mindset will complement our existing strengths and help our clients navigate the challenging restructuring landscape during this unprecedented time.”
Zerjal Fink was named a Pro Bono Star by Human Rights First and is a 2020 member of the International Insolvency Institute’s NextGen Class IX.
“I am thrilled to be joining Arnold & Porter’s world-class Bankruptcy and Restructuring practice,” Zerjal Fink said. “I look forward to expanding my practice and helping clients achieve their goals with a sophisticated and collegial team of lawyers.”
Norris McLaughlin Chairman John N. Vanarthos said the additions of Cassin and Switkes are critical components of the firm’s pandemic strategy.
“To be able to provide services our clients need, in a time of need, is so crucial to us. We are excited to have Jeff bring our already-well-established business group to New York, and to have Ross as an essential member of our bankruptcy group is truly a testament to our firm’s commitment to client service,” Vanarthos said.
Cassin’s expertise includes representing companies at every stage of the corporate lifecycle, and has led successful acquisitions and divestitures and has closed transactions in restaurant management, media, technology and human capital.
“Norris McLaughlin’s approach throughout the pandemic has been to help clients work through it so they come out stronger on the other end, which is a value that I share. I’m excited to be joining the team,” Cassin said.
Switkes’ practice includes corporate restructuring, and commercial litigation, debtor/creditor rights and corporate restructuring. He currently serves as the Vice-Chair of the Lawyers Advisory Committee for the U.S. Bankruptcy Court, District of New Jersey, and is a Trustee of the Mercer County Bar Association.
“I am excited to join Norris McLaughlin and its Bankruptcy Group. It is a privilege to join such a well-respected team. Not only am I benefitting from having access to the kind of business platform and infrastructure that I need to grow my practice, but my clients will benefit from the opportunity to take advantage of the broader range of high-quality legal services that Norris McLaughlin offers, and they can do so without an interruption in value,” Switkes said.
Dunning graduated from Harvard Law School in 1977 and went on to achieve equity partnerships at two Am Law 200 firms in a career spanning four decades. Dunning is recognized as a top employment law attorney in Utah and nationwide, and she has dedicated her time to educating others in the profession, serving as a mentor to junior women attorneys.
“Terry truly is the whole package—she is smart, hard-working, and devoted to her clients, her colleagues, her community, and to the rule of law,” said Brit Merril, one of the newer members of Holland & Hart’s Employment team and Denning’s mentee. “Terry is an exceptional mentor, a skilled advocate, and the embodiment of civility and professionalism.”
In addition to her legal career, Denning has served in leadership roles on the Board of Trustees for the Presbyterian Church Foundation and the Committee on Mission Responsibility Through Investment for the Presbyterian Church.
The St. Louis Business Journal named Armstrong Teasdale Partner Sarah Sise as one of its Most Influential Business Women for 2020, selecting Sise as one of 24 recipients out of 225 nominations.
Sise is the co-leader of Armstrong Teasdale’s Employee Benefits and Executive Compensation practice and has over 20 years of experience in the field. Sise also serves as co-chair of Armstrong Teasdale’s Inclusion Committee and is involved in the firm’s Women’s Inclusion Network.
Paul Klimos of DLA Piper
DLA Piper announced Paul Klimos, an associate in DLA Piper’s Corporate Practice, was appointed to the Global Future Council on Agile Governance of the World Economic Forum (WEF). Klimos will begin his one-year period of membership on October 1, 2020. The WEF Global Future Council’s is invitation only, and is comprised of thought leaders from across academia, business, civil society and government, dedicated to innovation and sustainability with an eye to the future. Klimos’ experience working with emerging technologies and entrepreneurs will inform his time on the WEF Global Future Council. In his practice, he represents emerging growth companies at all levels, as well as investors.
Nancy S. Shilepsky, partner in Sherin and Lodgen’s Employment Department, has been appointed to a three-year term as Employee Co-chair of the American Bar Association (ABA) Section of Labor and Employment Law’s International Labor and Employment Law Committee. Her term began on September 1, 2020 and will run through the end of August 2023. In this role, Shilepsky will study and report on foreign labor relations law and employment practices, with an emphasis on US executives and foreign executives working in the US. Shilepsky, along with her role at Sherin & Lodgen, has an internationally recognized reputation in executive employment compensation. On her role with the ABA, Shilepsky says:
The International Labor and Employment Law Committee has the unique responsibility of staying apprised of legal developments across the world. I’m honored to receive this appointment and look forward to working with members of the Committee to offer the most up-to-date analysis of international employment law.
Nancy is a leading influence in the world of executive advocacy and employment law and litigation and is a Fellow of the College of Labor and Employment Lawyers. She is a champion of the interests of individuals and a trusted counselor to executives, professionals, and partners across a wide range of industries. Nancy has established an internationally recognized reputation representing such clients in complex matters involving executive employment and compensation. She is known for her pioneering efforts in wrongful termination and discrimination cases. Her work includes a high-profile sexual harassment case involving the impact of the First Amendment on workplace speech restrictions and a landmark case dealing with the eradication of race-based discrimination in compensation.
The ABA’s Labor and Employment Law Section is comprised of more than 20,000 members who represent all perspectives of labor and employment law: management, union, plaintiff, neutral, and public. The Section is committed to a balanced discussion of employment issues throughout the world.
Sonny Haynes of Womble Bond Dickinson
Womble Bond Dickinson announced that Sonny Haynes, a partner in the Winston-Salem office, has been named one of the Minority Corporate Counsel Association (MCCA)’s Rising Stars for 2020. Attorneys who are given this honor must have at least eight years of experience in the legal profession, have leadership and achievements that are outstanding and have demonstrated a commitment to community service, pro bono work, and diversity, inclusion and equality.
Haynes fulfills these requirements through her practice focused on insurance defense, product liability and mass tort litigation. She has been a member of the City of Winston-Salem’s Human Relations Commission since 2013, and she served on the Minorities in the Profession Committee of the North Carolina Bar association. In her community, Haynes has recently focused on improving communication between community leaders and law enforcement on racial inequalities in the criminal justice system, among other community service efforts.
Law Firm Innovation and Development
“Necessity is the mother of invention,” and the stress and constraints of COVID-19 has inspired many ideas to facilitate the adaptation required by the virus. The Pandemic Technology Resource Center, operated at PandemicIp.org is a non-profit website with a searchable database of COVID-19 adaption ideas and technology, contributed to the public domain. The goal of this initiative is to ensure useful adaption ideas are spread quickly, to reduce the spread of COVID-19. PandemiciP.org is led by Jim Sulciner, a technology entrepreneur for over 30 years and former CEO of RTD Company and the website PandemicIP.org was organized by the intellectual property law firm Schwegman Lundberg & Woessner, P.A. (Schwegman).
PandemicIP.org’s board members Janal Kalis, a partner at Schwegman, and Russell Slifer, a former Deputy Director of the U.S. Patent and Trademark Office, infuse the endeavor with their expertise in patent licensing and commercialization. This innovative website is a great place for users to search ideas and solutions, so others may benefit from the adaptations and discoveries made necessary by the virus. By sharing work, innovators can stand on each other’s shoulders and make the innovation’s required by these interesting times.
M&T Bank recently announced Nota, a Fintech tool designed to assist attorneys manage their trust accounts from their bank accounts. The ABA recommends attorneys complete a three-way reconciliation process and balance their books against client ledgers and their bank statement. Mistakes in this process can be time-consuming and expensive errors can lead to being out of compliance with state requirements and could mean inquiries, audits and possible disbarment. Nota was designed to simplify the trust account management process, creating a seamless and efficient tool for lawyers to adhere to their accounting requirements. The tool was designed for small law firms and solo attorneys, which may not have extensive staff for accounting procedures. Paul Garbian, president of Nota, says, “Nota is transforming the way lawyers manage their trust accounts. We’ve reimagined the process by connecting it directly to the bank accounts and making it more intuitive, so attorneys spend less time managing their trust accounts and more time practicing law.”
We’ll be back with more legal industry news in two weeks. Thanks for reading!
The ABA has released a catalog of new and best-selling titles, putting some of their greatest and most informative books in one place. Titles include Mastering the Art of Preparing Witnesses & The Lean Law Firm, but it doesn’t stop there.
Save 25% off the list or member price when you use discount code NEWBEST25 when placing your order. The discount applies to select print books and eBooks. Discount expires on October 31, 2018 at 12:59 AM ET and cannot be combined with any other offers or discounts. Tax and shipping charges may apply.
Drones Across America, Unmanned Aircraft Systems (UAS) Regulation and State Laws
The popularity of drones (Unmanned Aircraft Systems – UAS) and drone technology is the United States has excited entrepreneurs and corporations, while sending lawmakers scrambling to keep pace with the industry’s growth. This comprehensive book lays out a framework for demystifying the sometimes unwieldy and ever-changing changing area of federal and state drone laws.
This book introduces the various institutions that govern aviation in the US and it covers the international framework — legal and institutional, multilateral and bilateral — within which U.S. regulation takes place. Written by a distinguished panel of experts, requirements applicable to every aspect of the aviation industry are clearly explained with citations.
This book is a comprehensive compilation of the major source documents of International Humanitarian Law. This ready-reference will be invaluable to lawyers, policymakers, military leaders, nongovernmental organizations and academics around the world.
The Business, Human Rights and Sustainability Sourcebook addresses the intersection of human rights law with the conduct of business, in light of sustainability mandates and the UN Guiding Principles on Business and Human Rights.
This sourcebook can be used as a standalone reference, or combined into a set as a companion volume with the Center on Human Right’s International Human Rights Law Sourcebook and The International Humanitarian Law Sourcebook.
