Tag: American Bar Association

American Bar Association Issues Formal Opinion on Use of Generative AI Tools

On July 29, 2024, the American Bar Association issued ABA Formal Opinion 512 titled “Generative Artificial Intelligence Tools.”

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.

Copyright © 2024 Robinson & Cole LLP. All rights reserved.
For more news on ABA Opinions on AI, visit the NLR Communications Media Internet section.

Attorney Mindfulness When Addressing Emails and Texts: ABA Formal Opinion Provides Ethical Guidance to Lawyers on Electronic Communications

In their roles as advisors, advocates, counselors, negotiators, and client representatives, lawyers communicate extensively though electronic means, particularly email and increasingly text messages. However, the fact that use of these electronic communication tools is commonplace in legal practice doesn’t mean that attorneys shouldn’t exercise caution when crafting their communications. The American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility published a formal opinion this month that advises lawyers to refrain generally from including their clients on emails and texts sent to opposing counsel.

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.

Article By Electronic Discovery at K&L Gates

For more law office management legal news, click here to visit the National Law Review.

Copyright 2022 K & L Gates

How to Practice Law in a Different State

There are plenty of benefits to being a multi-state lawyer.  Besides the most obvious advantage which is expanding your client base, it can also be practical when you live near a border between two different states. So, if you find yourself asking how to practice law in multiple states, you’re certainly not the first.  

In this article, we’ll detail how to become a multijurisdictional lawyer as well as some of the perks and drawbacks involved.

The Benefits of Practicing Law in Two or More States

Greater Client Base

It’s understandably appealing to be able to take on clients in different states.  It’s economically advantageous to generate more business in multiple locations.  Not to mention one state may have more demand for a certain practice area than another which can be practical for tapping into your niche market.

Furthermore, you may have clients that need representation in different states who don’t want to have to hire multiple lawyers.  Being able to offer all-in-one legal services can give you an edge over the competition. Of course, it goes without saying that you’ll need to allocate a bigger law firm marketing budget to market in not just one but multiple states. Or, just be more savvy with marketing strategies, such as familiarizing yourself with email marketing for law firms.

Greater Flexibility

Life events can spring up suddenly, forcing lawyers to relocate to a different state. Some states may only offer bar exams as little as twice a year, and as such, it can cause a significant delay before being able to accept clients. For many lawyers, anticipating the possibility of relocation without the worry of having to lose a second of work is an important advantage. So, ensuring they can practice anywhere is a nice added security to their business.

Ethical Responsibilities of Practicing Law In Multiple States

As more and more lawyers are working remotely since the onset of COVID, many are  accepting clients in other states.  Unfortunately, in many cases, these lawyers are violating the rules.

Rule 5.5 of the American Bar Association Model Rules of Professional Conduct states that lawyers may not practice in jurisdictions where they are not admitted. The consequences of violating these rules can range from a fine to disbarment depending on the gravity of the violation.   That being said, there are some exceptions to this rule.

For example, a licensed attorney may provide legal services temporarily in a different jurisdiction as long as they are associated with a lawyer who is admitted in that state.

How to Practice Law In Multiple States

Check For States That Offer Reciprocity

Some states offer reciprocity if you meet certain conditions.  Usually, these conditions depend on the amount of time you’ve been practicing and they may consider you eligible to practice in their state depending on the state bar that you’ve already passed.

It’s important to note, however, that you should never assume that just because a state offers reciprocity, you’ll be qualified.  It’s always important to contact the reciprocity state bar to ensure you are up to date with the latest policies otherwise you could risk serious disciplinary consequences.

Take the Uniform Bar

You might need to brush up on your legal education to retake the Uniform Bar Exam. The  Uniform Bar exam, also known as UBE, is a version of the bar exam that lets you practice between states with greater ease.  It’s important to note, however, that each state has its own bar admission requirements for the examination, and the passing score may vary by state. So, although it can be a solution in some scenarios, it’s not a sure thing. This is certainly more convenient than taking New York State, North Carolina, or any other state’s bar exam each time.

Take The Bar Exam For The States You Want to Work In

The most practical way to practice in another state is to pass the bar for that state.  However, there are significant costs and challenges involved which may not be ideal for everyone, and taking the UBE or opting for a state that offers reciprocity is much more common.

Take on Federal Court Cases

In theory, if you’re allowed to practice law in any state then you should be able to do so out of state. Yet, there is still some debate around this topic, and it’s still possible to find yourself in hot water with the state bar if you take this route.

Is Getting Licensed in Multiple States Right For You?

In the big picture, it’s much more convenient to practice in one jurisdiction for your entire career.  Yet, lawyers looking to take their practice to the next level may choose to pursue the route of becoming a multi-state lawyer despite the challenges.

The good news is that thanks to advancements like the UBE and reciprocity laws (as well as advancements in law firm technology), practicing law in another state is much easier than it was 20 years ago.  Deciding whether to get licensed in multiple states will come down to your unique circumstances and above all, how much time you have on your hands.

Getting licensed out of state requires a time commitment and administrative pile-up that may be difficult depending on your firm’s current workload.  Putting in the work it takes to acquire additional state licenses will be much easier if your practice is streamlined with the help of modern legal technology like a CRM and client intake software.  Not only can you access your firm from wherever you are thanks to cloud technology, but automation can help you stay on top of your most important tasks, and put your firm on autopilot while you’re focusing on passing the bar in another state.

FOOTNOTES

Shari Davison,  Reciprocity: What States Can You Practice Law?
https://www.onbalancesearch.com/reciprocity-what-states-can-you-practice-law/

Richard J. Rosensweig, Unauthorized Practice of Law: Rule 5.5 in the Age of COVID-19 and Beyond August 12, 2020
https://www.americanbar.org/groups/litigation/committees/ethics-professionalism/articles/2020/unauthorized-practice-of-law-rule-55-in-the-age-of-covid-19-and-beyond/

Article By Sarah Bottorff of Lawmatics

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©2022 — Lawmatics

Join the ABA in San Antonio Octoer 23-25 for the 9th Annual GPSolo National Solo and Small Firm Conference

The National Law Review is pleased to present you with information about the American Bar Association’s 9th Annual GPSolo National Solo and Small Firm Conference.

 

ABA 9th GPsolo Oct2014

Book your travel now for the 2014 GPSolo 9th Annual National Solo & Small Firm Conference (NSSFC). This year’s theme is “Building a Texas-Sized Practice on a Lone Star Budget.” Traditionally, the NSSFC attracts more than 200 solos and small firm practitioners from across the country and abroad. However, this year’s meeting in Texas is going supersize as we expect to draw record numbers. Come join the excitement and learn to build or expand your practice without spending a fortune.

Some exciting highlights of the meeting include:

–        Off-the-charts networking opportunities such as meet-and-greets with legal service plan providers and potential new business referrals

–        Rainmaking Forum; U.S. Supreme Court Swearing-In Ceremony (register now to take part); Naturalization Ceremony for new U.S. citizens; and an accreditation course for practice before the U.S. Department of Veterans Affairs (which, like Social Security representation, can result in a fee award). All these programs are new this year.

–        Opportunity to choose up to ten hours of CLE from more than 25 hours of offerings. This is not your everyday CLE. We will have several GPSolo book authors presenting on chapters from their recent publications, including the outstanding Run Your Firm Like a Business by Frank T. Lockwood, the timely Lawyer’s Guide to Financial Planning by Cynthia Sharp, and the ever-important Debt Collector’s Handbook by David J. Cook.

–        Sessions presented by the ABA Commission on Immigration for both immigration and non-immigration practitioners, including a mock trial demonstration with an immigration judge showing you the ins and outs of practicing before the immigration courts.

–        Difference Makers Awards Luncheon, where we celebrate the accomplishments of our honorees.

–        Training for pro bono representation with Kids in Need of Defense (KIND) to assist unaccompanied children who currently represent themselves in immigration court proceedings.

–        The opportunity to help educate high school students about being aware of debt through our Financial Literacy Outreach public service program.

 

GPSolo members will receive all of this and more for the not-so-Texas-sized price of $145—less than the cost of food and beverages alone. Why? We want to thank you in person for being a GPSolo member. So come on down and join the fun! Don’t mess with Texas, and don’t miss out on GPSolo’s signature event! For the best savings, register before September 22 and pay only $145 (GPSolo rate).