ABA Guidance on Using AI in Legal Practice

In this episode of the Reminger Report Podcast on Emerging Technologies, host Zachary Pyers welcomes back Mackenzie Smith Compton to discuss the American Bar Association’s latest guidance on the ethical use of artificial intelligence (AI) in legal practice. Building on their previous conversation, Mackenzie shares insights into the ABA's July pronouncement and its impact on attorneys utilizing AI.

Key Topics Covered:

1. Competent Representation
2. Protecting Client Information
3. Communication with Clients
4. Supervision of Employees and Agents
5. Advancing Meritorious Claims and Ensuring Candor to the Tribunal
6. Reasonable Fees and AI Efficiency

Transcript

REMINGER REPORT PODCAST ON EMERGING TECHNOLOGIES

AI in the Legal Field-Part 2

ZBP      Zachary B. Pyers, Esq.
 MC       Mackenzie Compton

 | ZBP | Welcome back to another episode of the Reminger Report Podcast on Emerging Technologies.  I’m Zach Pyers and I am happy to welcome back to the show Mackenzie Smith Compton to talk about the ABA this time and how it’s addressing AI in the application of law.  Now many of you may recall when Mackenzie was on the episode, the episode previously, she discussed kind of a broad scope of how the legal profession is addressing the use of AI and today we are going to be touching on kind of a more narrow topic that since the first episode was recorded we now have a little bit of guidance from the American Bar Association as it starts to address the challenges presented by the application and use of AI.  So, Mackenzie, welcome back.
| MC | Yes, thank you so much for having me. 
| ZBP | If you could, kind of tell us what is the ABA addressing in this most recent kind of pronouncement so to say-so to speak.
| MC | Sure, so back in July on the 29th, the ABA released new guidelines for how attorneys should be dealing with the use of AI in their practices.  So, broadly, the opinion addresses the implementation and ethical considerations for using AI.  It complies with the model rules of professional conduct, and it also takes into account regulations that about twelve other jurisdictions have set into motion.  So, it takes these very broad issues, and it breaks them down into five distinct categories: competent legal representation, protecting client information, communication with clients, advancing meritous claims and reasonable attorney fees.
| ZBP | Ok, so let’s kind of break those down, let’s start with the competent legal representation aspect of this that we discussed briefly in the last episode.  What does the ABA have to say about how competent legal representation applies to the use of AI?
| MC | So the ABA points to Model Rule 1.1 and it’s analysis.  Basically, stating that attorneys have an obligation to provide competent legal representation to their clients and this extends to the use of AI.  So, attorneys don’t need to be experts on how to use AI, but if they’re going to use AI in their practice, they need to understand the limitations, the benefits and the applications of the products that they use.  So, for example, if you’re using Chat GPT, you need to understand whether or not the information is private, you need to understand if the information will be accurate, if you’re using something like Lexis then you need to understand the different applications that you can work with in the program to make sure that you’re getting the most up to date legal research.  So, really, the ABA is focusing on an ongoing requirement to understand generative AI and it’s emphasizing that attorneys can’t just pawn work off onto the AI, they still have to be involved in the analysis of the case. 
| ZBP | The second category you mentioned of kind of issues that the ABA is addressing is protecting client information.  How does the ABA talk about that and how does it address it in this most recent kind of guidance?
| MC | Sure, so this goes back to making sure that attorney-client information is kept confidential under Rules 1.6, 1.9c and 1.18b.  So, basically, this is emphasizing that you need understand if the searches that you're doing in AI are what is referred to in AI is a proprietary search.  So, basically, a proprietary search is one that’s private and the system isn’t going to take the information that you input and then use it to inform it’s decisions and it’s information in queries that come from other people outside of your or outside of your practice.  So, this is really critical because if you’re using AI to look at medical records, and you input medical records into an AI generator and it’s not a proprietary resource, your client’s information is out in the ether.  So, it’s very important to make sure that not only are you keeping that client information private, but you’re understanding that the AI will do so as well.
| ZBP | Now, you also mentioned client communication as an area of concern, which you know, obviously we do a lot of communications with clients via email nowadays and other forms of electronic communication.  This is something we didn’t previously discuss so how are the Model Rules kind of applying to this area?
| MC | Sure, so the Model Rules are referring back to Rule 1.4 which requires that attorneys reasonably consult with their clients about the means by which the objectives of the case are to be accomplished.  So, the ABA is encouraging attorneys to be explicit with their clients about the use of AI.  So, if you’re going to use AI for research, it’s very important to disclose that to your client and let them know, hey we’ve got this tool to use AI, we’re going to use it in your case so that they can say I don’t really want you to use AI in my case or that sounds great, sounds like it could save some time and money.  The main takeaway there is that you just have to disclose the use of AI to your clients, and they need to understand what your AI can do.
| ZBP | The ABA also addresses supervising employees and agents.  What is the ABA trying to accomplish with this kind of aspect of their guidance? 
| MC | So the ABA is really citing Rules 5.1 and 5.3 which impose upon attorneys the duty to supervise subordinate lawyers, paralegals, assistants, anyone who may be working in the office.  So really there’s two—there’s two distinct groups here.  We’ve got in-house people and people out of house.  Thinking about our paralegals, our associates, and other attorneys we work for, the ABA wants firms to establish guidelines up front for the entire firm and for anyone who might be using AI about how it should be used.  And there’s a reciprocal duty here for the attorneys monitoring to make sure that anyone doing work for them on a case is abiding by those rules and not using AI outside of the guidelines.  Then turning to out of house resources, there’s a duty for attorneys to make sure that any experts you might retain, anyone who might become involved on a case to review records, anyone who may be rendering an opinion, even a court reporter, understand how they’re using AI and how that fits into the Model Rules and the ethical regulations.
| ZBP | Now the fourth area the ABA kind of provided guidance on, discusses and it relates to the advancing of meritorious claims and contentions to ensure candor toward the tribunal.  Now, that’s a lot of kind of jumble.  What’s the ABA trying to do with advancing meritorious claims and contentions while still ensuring candor towards the tribunal?
| MC | Yea, so Zach, you and I actually talked about this at length during our last podcast.  We talked about those attorneys up in New York who we just love to cite to as a reason to not use AI in the practice.  Really, this is dealing with a case hallucinations and hallucinated citations where Chat GPT is making up fake cases, fake case names and attorneys are using those case names and using the citations and the law in briefs to the court and they’re getting caught.  Basically, the duty of candor to tribunal means that we have to be honest with the court and any information that we put in front of the court needs to be true (cuts out) ………..so that attorneys know if you do use AI you need to make sure that what’s being put out, is accurate.  So, basically, it’s just encouraging shepherding and encouraging vigilance on these programs.
| ZBP | Now, can you tell me, you know one of the things that I think a lot people have talked about is the use of AI can make attorneys more efficient.  The efficiency, right, in a model where oftentimes attorneys bill by the hour, sometimes decreases potential revenue for the attorney or decreases attorney’s fees which is more cost effective for the client but also generates less revenue for the lawyer.  Could you tell us how the ABA kind of addressing the use of AI as it relates to attorney’s fees?
| MC | So the ABA just wants to make sure that under Rule 1.5 fees are reasonable.  So, if you’re going to employ Chat GPT or another AI resource like Lexis to do your legal research.  If Lexis can accomplish the research in 15 minutes and that’s what you use, you can bill 15 minutes for that.  You can’t go over.  Now if you have to shepherdize that’s another question where if you’re shepherdizing and you’re doing the active research that’s time that could be added on, but overall, you cannot charge more time for the use of AI than what you’re putting into it.  So, the ABA is really just making sure that you’re providing the right rate.  Further, you cannot charge your clients for the time that it takes you to learn how to use the AI.  So, if you have to go to a seminar to learn how to use AI or if you enroll in a course in a local community college or an institution to try to figure out how to use AI in your practice, you can’t then pass the bill onto the client and say hey I attended this seminar, thanks for paying for it. 
| ZBP | Now, if you could, cause we talked about a lot, can you kind of tell me what some of the big takeaways are from this guidance that the ABA has provided.
| MC | So, the ABA has indicated AI is here, it’s not going anywhere, every attorney needs to learn how to use it.  So, to that end, we need to understand the AI that is used, you need to understand all of the implications as an attorney for how that AI is going to retain information, how it’s going to provide you with information and what the limitations are.  Second, you need to make sure that everyone that you work with in a firm structure understands the AI that is being used and make sure that you understand how others are using so that you can appropriately monitor.  Third, clients need to be kept up to date if AI is going to be used, that’s something that should probably come up front, the ABA has made reference to engagement letters.  So making sure that the client is either on board with the use of AI or that you know that they don’t want you to use AI.  And finally, just as a general rule for practice, making sure that the fees reflect the work done and you’re not overbilling for the time that you have actually taken to do work if AI assists you.
| ZBP | Mackenzie, I really appreciate you taking the time today to give us this update, especially now that we have the ABA guidance.  So, I appreciate your willingness to come back and to talk with us and to share these kind of updates.
| MC | Thank you so much for having me, Zach.
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