The Florida Bar Approves Ethical Use of Generative AI by Lawyers, Emphasizes Competency and Adherence to Ethics

Tallahassee, Florida – Lawyers in Florida have received a new ethics opinion that outlines guidelines for the ethical use of generative artificial intelligence (AI) technologies. The opinion, issued by The Florida Bar, emphasizes the importance of adhering to ethical obligations when utilizing AI tools and urges legal professionals to develop competency in these emerging technologies.

Released on January 19, the non-binding Ethics Advisory Opinion 24-1 provides guidance to attorneys on the use of generative AI. The opinion, unanimously approved by The Florida Bar’s Board of Governors, highlights the potential benefits of AI in improving the efficiency of legal practices, while also acknowledging the ethical concerns associated with its use.

The opinion states that lawyers must take reasonable precautions to maintain client confidentiality and develop policies for the proper oversight of generative AI. Additionally, attorneys must ensure that fees and costs related to the use of AI are reasonable and comply with applicable ethics and advertising regulations.

Regarding client confidentiality, lawyers have a duty to protect the privacy of client information when using generative AI. While consent from clients may not be required for the use of AI in general, lawyers must seek consent if it involves the disclosure of confidential information. The ethics opinion emphasizes the importance of lawyers understanding the technology and indicates that existing ethics opinions related to confidentiality and competence apply to the use of generative AI.

The opinion also emphasizes the need for lawyers to supervise the use of AI and review the work product it produces. Just as lawyers are responsible for the work of non-lawyer assistants, they are ultimately accountable for the work generated by AI. Lawyers are cautioned against using generative AI in a manner that could be considered the unauthorized practice of law, particularly in the case of website chatbots that could unwittingly create lawyer-client relationships.

In terms of legal fees and costs, the opinion states that lawyers must not charge fees that are illegal or excessive. The increased efficiency brought about by AI should not result in exaggerated claims of time. Lawyers are encouraged to consider alternative billing arrangements, such as contingent fee arrangements or flat billing rates, to ensure that both lawyers and clients benefit from increased efficiency.

The use of generative AI for advertising and intake also comes under scrutiny in the opinion. Lawyers are advised to be cautious when using AI chatbots and must clearly inform prospective clients that they are interacting with an AI program. Lawyers may advertise their use of AI, but they are prohibited from claiming superiority over other lawyers or firms unless such claims can be objectively verified.

The opinion concludes by acknowledging that generative AI is still in its early stages and that the ethical issues discussed in the opinion are not exhaustive. Lawyers are urged to continuously develop their competency in AI and stay abreast of the risks and benefits associated with these technologies.

While generative AI presents opportunities for increased efficiency and productivity, legal professionals must remain conscientious in adhering to ethical obligations and ensuring the protection of client interests.