Ethical Considerations for Using Artificial Intelligence in Your Law Practice
By Laura Popps
Generative Artificial Intelligence (GAI) is quickly transforming the legal profession, giving us new ways to work more efficiently and streamline our workflow. But while it offers incredible potential, it also comes with serious risks—ranging from breaches of client confidentiality to citing GAI-generated but nonexistent legal precedents in court filings. Recognizing these risks, the State Bar’s Professional Ethics Committee recently issued Ethics Opinion 705, which provides important guidance for attorneys attempting to integrate the use of GAI in their practice.
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First, the Committee notes that, while lawyers are not obligated to use GAI in the practice of law, at least not currently[1] those who choose to do so must ensure they have a reasonable understanding of the technology in order to adequately evaluate the risks of GAI, such as “hallucinations or inaccurate answers, the limitations that may be imposed by the model’s use of incomplete or inaccurate data, and the potential for exposing client confidential information.”
One of the biggest risks of GAI use is the inadvertent breach of client confidentiality. Due to the self-learning nature of GAI, any information entered into the system could potentially be retained and later disclosed in response to 3rd-party queries. It’s therefore imperative that the lawyer understand the particular tool they are using and 1) either satisfy themselves that the program will not reveal confidential information to others or permit the use of such information to the disadvantage of the client, or 2) not enter any confidential information into the program without client consent. It’s also important to remember that confidential information is very broadly defined in Texas, including not only privileged information but “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”[2]
How much does a lawyer need to know about GAI to be considered sufficiently competent?
The Committee notes that while lawyers don’t have to become experts in the technology, they must gain a reasonable understanding of how the technology works and take reasonable precautions to ensure that confidential information is protected, which may include reviewing the terms of service for their particular GAI tool and making sure it has sufficient data-security protections in place.
Another ethical concern with the use of GAI is the accuracy of its responses. We've all seen the disasters that unfold when a lawyer fails to double-check information from GAI—most notably in a string of cases where attorneys have been caught citing nonexistent case law, confidently fabricated by AI, only to face embarrassment (or worse) when the truth was revealed. The Committee points out that lawyers are always responsible for the work product they submit and can run afoul of numerous disciplinary rules when they fail to take this responsibility seriously. In addition, lawyers must stay abreast of various court rules about the use of GAI.
Finally, the use of GAI raises ethical questions about how attorneys bill for their time. Obviously, it would not be appropriate to charge clients hourly fees for time that was “saved” by using GAI. On the other hand, it may be appropriate to seek reimbursement for per-use fees for GAI if the client accepts that arrangement.
Laura Popps defends Texas attorneys before the State Bar, advises on legal ethics, and handles criminal appeals. A former prosecutor, Laura has been Board Certified in Criminal Law by the Texas Board of Legal Specialization since 1999. She then served for ten years as Regional Counsel at the State Bar of Texas’ Office of Chief Disciplinary Counsel before founding her own firm.
Laura can be reached at laura@poppslaw.com or (512) 865-5185.
[1] The Committee makes the point that use of GAI is not currently required because the cost-benefit analysis of using this technology is not yet clear, but that this could change over time and that lawyers should not retreat from the use of new technology that could impart significant time and money savings for clients.
[2] Texas Disciplinary Rule of Professional Conduct 1.05(a).