The Duties of Competency & Confidentiality in the Use of Generative Artificial Intelligence
| Publication year | 2024 |
ETHICS WATCH
The Duties of Competency and Confidentiality in the Use of Generative Artificial Intelligence
By Nathan M. Crystal & Francesca Giannoni-Crystal
Almost all lawyers have heard about Generative Artificial Intelligence ("GAI"), many have experimented with its use, and some employ GAI extensively in their practice. "Generative artificial intelligence (AI) describes algorithms (such as ChatGPT) that can be used to create new content, including audio, code, images, text, simulations, and videos." (What is generative AI? McKinsey &Company, available at www.mckinsey.com/ featured-insights/mckinsey-ex-plainers/what-is-generative-ai. Last visited Feb 6, 2024). Various governmental institutions are investigating the use and risks involved in GAI, and some have taken steps to regulate GAI. For example, the United States Court of Appeals for the Fifth Circuit has issued a proposed rule that would require filers to certify that they have either not used generative AI in drafting a document presented for filing or "to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human." Proposed Amendment to 5th Cir. R. 32.2. The Florida Board of Governors Review Committee on Professional Ethics has issued Proposed Advisory Opinion 24-1. The California State Bar Standing Committee on Professional Responsibility and Conduct has issued a report, Practical Guidance for the Use of Generative Artificial Intelligence in the of Law. Other bar associations have established special committees to investigate the benefits and risks associated with GAI.
While the development of GAI is still in its early stages, it is necessary to consider at least tentatively some of the ethical issues that this new technology raises. Some are quite obvious and have received substantial publicity, while others are much less identified. Even at this relatively early stage, one general point can be made: While the legal profession has in the last few decades encountered and benefited from many technological changes, these changes have not undermined basic ethical obligations but instead have presented new circumstances for application of fundamental ethical concepts. However, it is also true that context matters for ethical issues; for example, application of basic ethical principles to social media and to cloud computing pose some special problems, and the same is true with GAI. For example, use of cloud computing almost always involves disclosure of client confidential information to the cloud provider, but such disclosure is ethically permissible if certain requirements are met. By contrast, use of GAI does not necessarily involve the disclosure of client data.
A number of law firms have restricted lawyers from utilizing specific AI tools like ChatGPT, citing concerns about potential data breaches and the risk of AI-generated content being misleading. See e.g., Justine Henry, Big Law, Nixing ChatGPT for Legal Work, Seeks Secure AI Solution, available at www.law. com/americanlawyer/2023/08/03/ big-law-nixing-chatgpt-for-legal-work-seeks-secure-ai-solution/?sl-return=20240018233452. Last visited February 7, 2024. Some Am Law 200 firms have prohibited the use of these tools in client services, highlighting concerns related to data breaches and the potential for generating inaccurate information. Additionally, certain firms have opted to prohibit the internal use of open-source...
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