Ethics Watch

• Year: 2025
• Citation: Vol. 36-3

ETHICS WATCH

No. Vol. 36 Issue 3 Pg. 18

South Carolina Lawyer

January, 2025

Using ChatGPT 40 While Complying with Ethics Requirements

BY NATHAN CRYSTAL AND FRANCESCA GIANNONI-CRYSTAL

This is the third is a series of ethics watch columns in the "South Carolina Lawyer" on the use of generative artificial intelligence ("GAI"). "ABA Formal Opinion 512 on Ethical Issues in LTsing Generative Artificial Intelligence ("GAI")" (September 2024), discussed six ethical obligations examined by the ABA Opinion: competency, confidentiality, communication, meritorious claims and candor to the tribunal, supervisory responsibilities, and fees. After summarizing key points from tliis opinion, the article concluded:

The ABA Opinion has many useful observations and cautions about the use of GAI tools, but one fundamental theme throughout the opinion is that compliance with these obligations depends on the particular GAI tool that the lawyer uses and the specific task that the lawyer asks the tool to perform as part of the lawyer's representation of the client.

The platform and task-specific references in the ABA opinion led to my second article. "Due Diligence to Protect die Duty of Confidentiality Before LTsing ChatGPT 40" (November 2024), which, as of the date tliis column is being written, is Open Al's most advanced product and is appropriate for complex tasks. See https://platform.openai.com/docs/ models. The article specified the questions addressed to ChatGPT 4.0 about use of the platform and concluded that "a lawyer or law film is not ethically precluded from using tliis program." The article went on to recommend for

every lawyer to perform a due diligence analysis before employing tools like ChatGPT 40, just as they would before using any other platform, such as cloud services, asking as many questions as they deem relevant and keeping the responses on file to demonstrate that they conducted proper due diligence.

However, the article emphasized that due diligence with regard to a platform is only part of the due diligence examination. In addition, a lawyer must evaluate whether use of the platform to perform specific tasks is ethically proper. Lawyers can use ChatGPT in their practice in various ways, but it is important to recognize that some uses align with ethical rules while others may not. In most cases, the use itself is not outright permitted or prohibited; rather, it is the maimer of use that determines whether it complies with ethical obligations. Evaluation of the use of ChatGPT 40 for specific lawyering tasks is the focus of this article.

Drafting emails or other communications

While ChatGPT 40 is highly effective at drafting communications and can streamline tasks such as client correspondence or internal memoranda, caution is warranted when using it for these purposes. It is ethically proper to use ChatGPT 40 for tliis purpose by giving general instructions, for example directing ChatGPT 40 to draft a demand letter in a particular type of case. You can instruct ChatGPT 40 on the degree of forcefulness of the letter. and if you are not satisfied with the draft, you can ask ChatGPT to make it stronger, or more friendly, or whatever tone you are trying to achieve. However, you should not insert the name of the client or of the other side, and you should avoid any detail that would make the matter recognizable. If you want ChatGPT to draft a response to an email or letter, you can copy and paste the text of the document or upload the document (with confidential information appropriately redacted) and provide instructions for drafting the response. It is more questionable whether you can actually share confidential information, i.e., sharing documents or text without redaction. As shown in our due diligence inquiry into ChatGPT 40. the platform does not retain any uploaded documents beyond the particular session with the attorney. ChatGPT 40 does have a search feature (the hourglass) that allows users to access and search prior chats; these are retained for 30 days. Users can turn off the search feature for greater confidentiality or can delete particular chats that the user considers to be especially sensitive. Also, it appears that ChatGPT 40 does not use uploaded information for training purposes and that any information provided, including uploaded documents or text, is used solely to assist with the user's specific request during the conversation. While these features could be sufficient to satisfy the ethical requirement of Rule 1.6(c), which provides: "(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client"), as a matter of best practice, lawyer redaction of confidential information before uploading it to any platform, including ChatGPT 40, minimizes the risk of accidental disclosure, technical vulnerabilities, or any unforeseen issues.

Initial research

ChatGPT 40 is very useful in doing initial research into a problem both in the home jurisdiction or in other jurisdictions that might govern the matter. Unlike traditional search tools, ChatGPT 40 can infer what you might be looking for even if you do not express it precisely with the correct search terms, making it a valuable tool for exploring complex or poorly defined queries. For example, if you want to know whether California imposes limitations on contingent fees, ChatGPT 40 will provide a useful summary, which is an efficient way of beginning research into a topic. It is ethical to use ChatGPT 40 this way, however, the use becomes unethical when a lawyer relies on the Al's output without thoroughly reviewing and verifying the information. It is well-known that AI is subject to "hallucinations" - inaccurate statements about the law or other matters - so users cannot rely on any such statements without verification. Failing to check the results could lead to inaccuracies or omissions that might misinform clients or affect legal outcomes, violating the lawyer's duty of competence. Because ChatGPT 40 is prone to errors, it is not a reliable substitute for research with databases like LexisNexis or Westlaw.

Case summarization

In briefs or memoranda lawyers often need to summarize cases. Summaries can sometimes be extensive when the case is significant or short when the case is less important. Lawyers can upload to ChatGPT 40 pdfs of cases for which they need smmnaries and ask ChatGPT 40 to prepare the summary. Moreover, die request can state the number of words allotted for the summary. If the lawyer wants the summary to include quotations of particularly significant language, ChatGPT 40 will do that. It is ethical for a lawyer to use ChatGPT 40 in tliis maimer, as there are no issues of confiden tiatity involved when summarizing publicly available cases. However, the lawyer retains the duty to review the output for accuracy.

Explanation of unfamiliar concepts

ChatGPT 40 is very useful in educating lawyers on concepts with which they may be unfamiliar. Educating oneself with these concepts through ChatGPT 40 is ethical, whether the issues are personal to the lawyer's practice or related to client matters. For instance, suppose a lawyer is not experienced in bankruptcy and has a client that has not paid the lawyer's fees and has now filed for bankruptcy under Chapter 11. The lawyer is thinking about filing suit against the client. An inquiry into ChatGPT 40 will inform the lawyer that bringing suit would violate tire automatic stay in bankruptcy under 11 U.S.G. §362 and expose the lawyer to potential sanctions by the bankruptcy court. ChatGPT 40 will provide the lawyer with other information, including the process for filing a proof of claim. ChatGPT 40 can similarly assist a lawyer in understanding unfamiliar aspects of a client's bankruptcy matter, such as the implications of different chapters of bankruptcy or tire requirements for objecting to a discharge.

Another useful feature of ChatGPT 40 is its ability to respond to fol low up questions. In our bankrupt cy example, you might ask about the deadtine for filing a proof of claim, and ChatGPT 40 will provide highly useful information. While this use is ethical, lawyers must always verify the information obtained to ensure its accuracy and reliability to avoid violation of the duty of competency.

Drafting marketing materials and writing articles

Marketing is a key aspect of modern legal practice, and ChatGPT 40 can assist in creating various materials, such as blogs, presentations, Linkedln posts, and firm brochures. Whatever the product, lawyers must make sure they comply with the applicable rules of professional conduct. They cannot rely on ChatGPT 40 to determine which ethical rules apply to lawyer advertising in their jurisdictions and must independently verify such requirements. For

example, in New York many forms of lawyer marketing must contain the statement "Attorney Advertising." See NYRPC 71(f).

Lawyers may use ChatGPT 40 to help draft scholarly articles or other publications, and such a use of ChatGPT 40 is ethical. ChatGPT 40 is at its best in this task when used to refine ideas and theories, much like brainstorming with a colleague in a back-and-forth exchange.

Use of ChatGPT 40 for privilege review

One of the questions we asked ChatGPT 40 as part of our due diligence (see the November article) was whether ChatGPT 40 could be used for privilege review. ChatGPT 40 responded that it did not have the capability of making determinations of privilege or work product, but the program could be used to review and flag documents as possibly subject to attorney-client privilege or work product. However, while it is not unethical to use ChatGPT 40 for privilege/work product review because our due diligence analysis persuades us that ChatGPT 40 provides reasonable protections of confidentiality comparable to other cloud computing programs, for several reasons in our opinion the program should not be used for tliis task. First, the review requires uploading documents that contain information subject to the ethical duty of confidentiality, and it is obviously desirable to limit the disclosure of confidential information even when it is adequately protected. (With regard to privilege/ work product review, redaction is not an option because that would undermine the accuracy of the review). Second, ChatGPT 40 has limitations on the size and number of documents that can be uploaded. Third, the limited flagging review that ChatGPT 40 can do will mean that further work is needed to make privilege/work product determinations. However, as discussed in the next section ChatGPT 40 can be used for software identification to find programs tailored to the specific needs of the lawyer.

Use of ChatGPT 40 for software and hardware identification

ChatGPT 40 can be highly useful in identifying and evaluating software and hardware tailored to the specific needs of the lawyer. For example, having determined that ChatGPT 40 was not appropriate for privilege/work product deter minations, we asked it to identify inexpensive programs that could be used for privilege work product review, and it responded with four-choices along with a suggestion as to how Microsoft Word or Excel could be used when budget constraints are significant. The program could be used for hardware identification and evaluation, such as comparing laptops or other hardware. Obvious ly, there is nothing confidential in

these types of searches. These tasks are necessary for a law firm but can take time away from client matters.

Compliance with supervisory obligations

The Rules of Professional Conduct impose supervisory obligations on managers of firms and supervising lawyers over both other lawyers and nonlawyers employed by the firm. See SCRPC 5.1 (lawyers) and 5.3 (nonlawyers). Managers of a firm have an obligation to adopt policies and procedures designed to give reasonable assurance that lawyers and nonlawyers employed by the firm adhere to the Rules of Professional Conduct. One aspect of that obligation is providing for proper training of lawyers and staff regarding use of AI. Preparation of a comprehensive set of policies and procedures for use of AI by lawyers and staff is a complicated, time consuming task. What should firms, especially small firms, do? My suggestion is to start, and here are three policies/ procedures that firms could adopt immediately: (1) All lawyers and staff must participate in two hours of educational programs each year on the use of AI. The firm could arrange for in-house programs or compile a list of approved programs for lawyers and staff to attend. (2) No lawyer or staff member may use an AI platform to provide legal services unless the platform has been approved by the firm for use in client matters. (3) The firm should designate a member who is responsible for developing additional policies and procedures governing the use of AI by firm attorneys and staff. And of course ChatGPT 40 can also be used to ch-aft firm's policies and to prepare training materials.

Reasonable fees for using AI

Several ethics opinions deal with fees for using AI: ABA Formal Opinion 512, DC Ethics Opinion 388: Kentucky Bar Assn. Ethics Op. E-457. To date South Carolina has not issued an ethics opinion on AI. In general these opinions stand for the following propositions: (1) It is proper to charge clients for use of AI based on the time expended by the providers at their normal hourly rates: (2) with client consent it is proper to charge clients the actual cost incurred by the lawyer in using AI; (3) it is not proper to charge clients for the tune the lawyer saves by using AI; (4) flat fees for AI searches may be proper but lawyers should still make sure that the flat fee complies with the requirement of reasonableness under SCRPC 1.5(a); (5) It is improper to charge clients for tune involved in learning to use AI because lawyers have a duty of competency regarding new technologies such as AI, see SCRPC 1.1, comment 8.

Disclosure and client consent to use of AI

Lawyers have an ethical duty to communicate with their clients,

which includes communication about the means by which the lawyer will seek to achieve the client's objectives. See SCRPC 1.4(a) (2). What do these communication duties require of lawyers when using AI? ABA Formal Opinion 512 contains an extensive discussion of these duties, but as noted above the opinion concludes that it is impossible to give a specific answer on the application of the duty to communicate to the use of AI particularly GAI:

It is not possible to catalogue every situation in which lawyers must inform clients about their use of GAI. Again, lawyers should consider whether the specific circumstances warrant client consultation about the use of a GAI tool.... ABA Formal Op. 512 at 9.

This article following the guidance of Star Trek (with some modification) - "To boldly go where no man (or woman) has gone before" - offers the following observations about disclosure and client consent regarding use of AI:

1) If the use of AI does not involve the disclosure or uploading of client information, for example initial legal research, summarization of cases, drafting of commu mentions with general language only, disclosure and client consent are not ethically required;

2) If the use does involve disclosure of client information, for example, privilege review or analysis of a settlement offer, then informed client consent is required;

3) For both marketing reasons and as a matter of professional prudence (even if not ethically required), lawyers should include in their engagement agreements general reference to use of AI. for example:

Use of Electronic Devices and Services. As is common in contemporary legal practice, in carrying out this engagement this film uses various electronic devices, such as laptops, tablets, smart phones, flash drives and copy and fax machines, and a number of software services ("SAS"), including cloud computing and artificial intelligence services. In using such technology, the firm takes reasonable steps to protect client confidentiality and to comply with other ethical and professional requirements. If you or your client have confidentiality concerns about our use of electronic devices or services, please inform us in wilting regarding your concerns and we will discuss the matter further. By signing this agreement, you express your understanding of the risks involved in die use of electronic devices and sendees and you consent to our films use diereof.