How Will Generative AI Impact Legal Practice in California?
States like California are exploring how to provide guidance on the ethical use of generative AI in legal practice. On November 16, 2023, the California Bar’s Board of Trustees adopted recommendations from the Committee on Professional Responsibility and Conduct regarding the use of generative AI by lawyers.
These recommendations offer guidance on applying existing ethical rules to generative AI tools, helping lawyers understand how to use AI responsibly.
What Are the Key Guidelines for Lawyers Using Generative AI?
The updated guidance provides several recommendations to ensure that lawyers ethically integrate AI tools into their practice while still maintaining high standards of client service and compliance with legal and professional obligations. Key points include:
Confidentiality and Security
Lawyers must prioritize client confidentiality and data security when using generative AI. Since AI systems pose potential risks of data misuse, lawyers should anonymize client data and consult with IT professionals or cybersecurity experts to ensure proper safeguards are in place. Reviewing terms of service for AI tools can help protect client information and ensure compliance with ethical standards.
Competence and Diligence
The guidance emphasizes that lawyers must remain competent in their use of generative AI tools and understand their limitations. AI-generated outputs should be thoroughly reviewed for accuracy and relevance to clients’ needs. Lawyers should not rely solely on AI and must continue to apply critical analysis and professional judgment.
Legal Compliance
Lawyers must adhere to all applicable laws, including those related to AI, privacy, intellectual property, and cybersecurity. It is essential for lawyers to stay informed about evolving legal requirements to ensure that their use of generative AI remains compliant and protects both their interests and their clients’.
Supervision and Policy
Law firms should establish clear policies regarding the use of generative AI, ensuring that both managerial and supervisory lawyers take steps to comply with professional obligations. This includes providing training on ethical considerations and ensuring that subordinate lawyers use AI in ways that comply with their own professional duties.
Communication with Clients
Lawyers must disclose their intention to use generative AI tools to their clients, explaining its purpose, benefits, and drawbacks. Ensuring that clients are informed and understand the risks associated with AI use is critical to maintaining transparent communication and upholding ethical standards.
Billing Practices
While generative AI can increase efficiency, lawyers cannot charge clients for time saved by using AI. However, they may charge for tasks such as creating inputs or reviewing and editing outputs as long as fee agreements clearly outline costs associated with AI use.
Accuracy and Candor
Lawyers are responsible for reviewing AI-generated outputs for accuracy before submitting them to court. They must correct any errors or misleading information and comply with all rules regarding the use of AI in their jurisdiction.
Addressing Bias
Generative AI can introduce biases. Lawyers must engage in continuous learning to understand AI’s potential biases and establish policies to address and minimize those biases.
Cross-Jurisdictional Issues
Lawyers must review the laws of each jurisdiction in which they intend to implement AI-generated content to ensure compliance with local laws.
What Is A.B. 2811?
On April 1, 2024, Assembly member Josh Lowenthal introduced A.B. 2811, which would require lawyers to disclose AI-assisted legal filings and retain information about AI use for 7 years. Lawyers would need to file an affidavit certifying whether AI was used in drafting any documents filed in state or federal court in California.
The bill ensures transparency in AI-assisted legal practice and aims to address accountability concerns in business and legal matters.
At TONG LAW, our experienced business attorneys can help you navigate the complexities of AI use in legal and business settings, ensuring compliance with state and federal laws.
Author Bio
Vincent Tong is the CEO and Managing Partner of TONG LAW, a business and employment law firm located in Oakland, CA. Vincent is a fierce advocate for employees facing discrimination and wrongful termination. With several successful jury trial victories and favorable settlements, he has earned a strong reputation for delivering exceptional results for his clients.
In addition, Vincent provides invaluable counsel to businesses, guiding them on critical matters such as formation and governance, regulatory compliance, and protection of intellectual property assets. His depth of experience allows him to anticipate risks, devise strategies to avoid legal pitfalls, and empower clients to pursue their goals confidently.
Vincent currently serves as the 2021 President of the Board of Directors for the Alameda County Bar Association and sits on the Executive Board for the California Employment Lawyers Association. Recognized for outstanding skills and client dedication, he has consecutively earned the Super Lawyers’ Rising Star honor since 2015, reserved for the top 2.5% of attorneys. He also received the Distinguished Service Award for New Attorney from the Alameda County Bar Association in 2016. He is licensed to practice before all California state courts and the United States District Court for the Northern and Central Districts of California.