Generative Artificial Intelligence and the Legal Industry: New Jersey and Florida Weigh In
By Jacqueline Muttick & Kenneth O’Donohue
While attorneys have been navigating both the implementation and implications of artificial intelligence in the legal industry, the courts and state legislatures have been weighing the ethical hazards related to use of this emerging technology. Two recent examples are Florida and New Jersey. Florida has now issued ethical guidelines for the use of artificial intelligence in the legal industry, while New Jersey has released preliminary guidelines for it.
Generative artificial intelligence (“AI”) utilizes neural networks comprised of large datasets to generate content. This is how a program like ChatGPT takes a prompt, performs automated analysis using predictive models, and provides a text output to the user. While this can be a valuable tool when used correctly, the novelty of AI has led to unanticipated outcomes, including the generation of false information. The consequences of such false information have resulted, in some extreme cases, in attorney sanctions and ethical complaints against lawyers that have improperly utilized AI. In response, courts have established committees to offer guidance to both the courts and legal counsel.
Florida’s guidelines (Opinion 24-1) stress the need for confidentiality, accuracy, competency, and adherence to current ethical standards. Florida does not bar the use of AI, but does require oversight to ensure that firms establish polices for the use of AI in research, drafting, and communications. All law firm personnel, including third-party vendors, should be aware of and adhere to these policies. AI results must be verified for accuracy and truthfulness, and must be consistent with attorney professional and ethical standards.
The Florida guidelines also address legal billing. Any costs associated with the use of AI should be disclosed to clients, and any increases in efficiency should be reflected in invoices. Further, lawyer advertising created by AI must adhere to current legal advertising standards. To the extent that AI is used on a lawyer’s website as a chatbot, that program should be modified to conform to ethical rules, including disclosing it is a chatbot, limiting responses to avoid giving legal advice, and including screening questions to prevent communications with website visitors already represented by counsel.
Florida’s opinion also stresses that confidentiality must be maintained when utilizing AI. Users must prevent disclosure of confidential information, particularly because AI programs may store and save user prompts thereby retaining confidential information. Before utilizing AI, attorneys should determine the security protocols concerning user prompts, as well as how user prompt information is utilized, retained, and destroyed. Further, if confidential information must be disclosed to an AI program, client consent may be required.
New Jersey’s preliminary guidelines, while not as robust as those issued by Florida, still provide direction by stressing that AI does not change the core ethical responsibilities for lawyers.
New Jersey emphasizes that lawyers should engage with AI carefully, focusing on accuracy and truthfulness which includes verifying all information generated by AI. Lawyers may use AI in interacting with clients, and, if asked, must disclose its utilization. Lawyers should remain cognizant of the possibility that AI may generate false information and should therefore confirm all generated information. Disclosure of confidential information must be avoided and it is incumbent upon lawyers using AI to ensure the security of confidential information. Firms and lawyers are responsible for overseeing other attorneys and staff in the ethical use of AI.
Overall, the Florida and New Jersey guidelines underscore the ethical duties already incumbent upon all attorneys and provide direction on considerations that must be undertaken prior to utilizing AI in legal work. With the proliferation of AI in a variety of contexts, including those that may not be obvious at first glance, attorneys must remain attentive and conscientious in adhering to current ethical requirements, and must familiarize themselves with the emerging technology prior to utilization.
By Jacqueline Muttick & Kenneth O’Donohue
While attorneys have been navigating both the implementation and implications of artificial intelligence in the legal industry, the courts and state legislatures have been weighing the ethical hazards related to use of this emerging technology. Two recent examples are Florida and New Jersey. Florida has now issued ethical guidelines for the use of artificial intelligence in the legal industry, while New Jersey has released preliminary guidelines for it.
Generative artificial intelligence (“AI”) utilizes neural networks comprised of large datasets to generate content. This is how a program like ChatGPT takes a prompt, performs automated analysis using predictive models, and provides a text output to the user. While this can be a valuable tool when used correctly, the novelty of AI has led to unanticipated outcomes, including the generation of false information. The consequences of such false information have resulted, in some extreme cases, in attorney sanctions and ethical complaints against lawyers that have improperly utilized AI. In response, courts have established committees to offer guidance to both the courts and legal counsel.
Florida’s guidelines (Opinion 24-1) stress the need for confidentiality, accuracy, competency, and adherence to current ethical standards. Florida does not bar the use of AI, but does require oversight to ensure that firms establish polices for the use of AI in research, drafting, and communications. All law firm personnel, including third-party vendors, should be aware of and adhere to these policies. AI results must be verified for accuracy and truthfulness, and must be consistent with attorney professional and ethical standards.
The Florida guidelines also address legal billing. Any costs associated with the use of AI should be disclosed to clients, and any increases in efficiency should be reflected in invoices. Further, lawyer advertising created by AI must adhere to current legal advertising standards. To the extent that AI is used on a lawyer’s website as a chatbot, that program should be modified to conform to ethical rules, including disclosing it is a chatbot, limiting responses to avoid giving legal advice, and including screening questions to prevent communications with website visitors already represented by counsel.
Florida’s opinion also stresses that confidentiality must be maintained when utilizing AI. Users must prevent disclosure of confidential information, particularly because AI programs may store and save user prompts thereby retaining confidential information. Before utilizing AI, attorneys should determine the security protocols concerning user prompts, as well as how user prompt information is utilized, retained, and destroyed. Further, if confidential information must be disclosed to an AI program, client consent may be required.
New Jersey’s preliminary guidelines, while not as robust as those issued by Florida, still provide direction by stressing that AI does not change the core ethical responsibilities for lawyers.
New Jersey emphasizes that lawyers should engage with AI carefully, focusing on accuracy and truthfulness which includes verifying all information generated by AI. Lawyers may use AI in interacting with clients, and, if asked, must disclose its utilization. Lawyers should remain cognizant of the possibility that AI may generate false information and should therefore confirm all generated information. Disclosure of confidential information must be avoided and it is incumbent upon lawyers using AI to ensure the security of confidential information. Firms and lawyers are responsible for overseeing other attorneys and staff in the ethical use of AI.
Overall, the Florida and New Jersey guidelines underscore the ethical duties already incumbent upon all attorneys and provide direction on considerations that must be undertaken prior to utilizing AI in legal work. With the proliferation of AI in a variety of contexts, including those that may not be obvious at first glance, attorneys must remain attentive and conscientious in adhering to current ethical requirements, and must familiarize themselves with the emerging technology prior to utilization.