On November 13, 2023, the Florida Bar issued a Proposed Advisory Opinion regarding lawyer’s use of generative Artificial Intelligence (AI), and sought comment from members of the Florida Bar on the proposed opinion.
The crux of the proposed opinion addresses concerns regarding:
- Lawyers taking reasonable steps to protect the confidentiality of client information, and
- Assurance that lawyers develop policies for reasonable oversight of generative AI use to ensure compliance with ethical standards.
As to confidentiality concerns related to cloud computing, the Advisory Opinion concludes that every lawyer should follow three core standards:
- Ensure that the provider has an obligation to preserve the confidentiality and security of information, that the obligation is enforceable, and that the provider will notify the lawyer in the event of a breach or service of process requiring the production of client information.
- Investigate the provider’s reputation, security measures, and policies, including any limitations on the provider’s liability; and
- Determine whether the provider retains information submitted by the lawyer before and after the discontinuation of services or asserts proprietary rights to the information.
The Florida Bar Board of Governors notes that the release of ChatGPT-3 in November 2022 prompted wide-ranging debates regarding lawyers’ use of generative AI in the practice of law. While it is impossible to determine the impact generative AI will have on the legal profession, the Proposed Advisory Opinion is intended to provide guidance to Florida Bar members regarding some of the ethical implications of these new programs.
Generative AI are “deep-learning models” that compile data “to generate statistically probable outputs when prompted.” Generative AI can create original images, analyze documents, and draft briefs based on written prompts. Often, these programs rely on large language models. The datasets utilized by generative AI large language models can include billions of parameters making it virtually impossible to determine how a program came to a specific result.
As to Oversight of generative AI, the Florida Bar focusses on the rules regarding nonlawyer assistance. The Proposed Advisory Opinion recommends lawyers make reasonable efforts to ensure that the law firm policies to reasonably assure that the conduct of a nonlawyer assistant is compatible with the lawyer’s own professional obligations, a lawyer must do the same for generative AI. Lawyers who rely on generative AI for research, drafting, communication, and client intake risk many of the same perils as those who have relied on inexperienced or overconfident nonlawyer assistants.
“A lawyer’s first responsibility when using generative AI should be the protection of the confidentiality of the client’s information as required by Rule 4-1.6 of the Rules Regulating the Florida Bar,” stated the Advisory Opinion. “The ethical duty of confidentiality is broad in its scope and applies to all information learned during a client’s representation, regardless of its source. Rule 4-1.6, Comment. Absent the client’s informed consent or an exception permitting disclosure, a lawyer may not reveal the information. In practice, the most common exception is found in subdivision (c)(1), which permits disclosure to the extent reasonably necessary to ‘serve the client’s interest unless it is information the client specifically requires not to be disclosed[.]’ Rule 4-1.6(c)(1). Nonetheless, it is recommended that a lawyer obtain the affected client’s informed consent prior to utilizing a third-party generative AI program if the utilization would involve the disclosure of any confidential information.”
Click here to view a complete copy of the Proposed Advisory Opinion on AI.