Ethical Rules for Using Generative AI in Your Practice | Model Rules 5.1 & 5.3: Supervision of Associates and Non-Lawyer Assistance
August 26, 2024
Steve Herman is special counsel in Fishman Haygood’s Litigation Section. He has served on the American Association for Justice (AAJ) Board of Governors since 2014 and currently serves as Chair of the AAJ’s AI Task Force. He also serves on the standing Louisiana State Bar Association (LSBA) Rules of Professional Conduct Committee and has given numerous presentations on the use of AI in the legal profession. In this biweekly series, he identifies ethical rules for generative AI usage in law practice. Click here to read his prior analysis of ABA Model Rule 3.3: Candor to the Court.
At the risk of stating the obvious, we are still in the early days of what we believe to be an “AI Revolution” in the way that goods and services, including legal services, are and will be provided. Which means that we do not, at this point, have much in the way of formal guidance.*
With that preface, in this series we will examine some of the Professional Rules[i] and other legal requirements that could potentially be implicated by a law firm’s use (or non-use) of ChatGPT or other Generative AI (GAI). In our last post, we covered how using AI can pose a risk of violating ethical rules relating to the misrepresentation of facts. For this reason, closely monitoring AI output and overseeing its use is imperative as a supervising attorney. Read on to learn more.
Model Rules 5.1 and 5.3: Supervision of Associates and Non-Lawyer Assistance
Model Rules 5.1 and 5.3 place an affirmative duty on a supervising attorney[ii] to undertake reasonable efforts to ensure that associates, paralegals, and other staff working under their direction conform to the ethical and professional obligations of the attorney.[iii]
In this regard, it is likely a good idea to establish, periodically review, and enforce internal policies and protocols regarding the use—and/or limitation and restrictions on use—of ChatGPT and other AI products by lawyers and other employees at the firm. This should also be done, where appropriate, for local counsel and other co-counsel. [iv]
At the same time, Model Rule 5.3—with respect to nonlawyer assistance—may additionally be interpreted to impose a duty concerning information generated by the AI product or service itself. The title of the Rule was updated in 2012 to include the word “nonlawyer”, which made clear the rule encompassed any type of assistance, whether human or not.[v]
Next time, Herman will cover the issue of confidentiality.
*On July 29, 2024, the ABA issued formal guidance for the use of GAI. Like much of the previous guidance and commentary, the ABA focused on (i) Competence, (ii) Confidentiality, (iii) Communication with Clients regarding the Use of AI, (iv) Candor Toward the Tribunal, (v) Supervisory Responsibilities, and (vi) the Reasonableness of Fees. Read more here.
[i] ABA Model Rules of Professional Conduct
[ii] Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers
[iii] Rule 5.3: Responsibilities Regarding Nonlawyer Assistance
[iv] Official Comment [1]: Law Firms and Associations
[v] Natalie A Pierce and Stephanie L. Goutos, Why Lawyers Must Responsibly Embrace Generative AI 2023 (available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4477704)