Ethical Rules for Using Generative AI in Your Practice | Model Rules 1.7 and 1.8
October 22, 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. Read his previous analysis of Model Rule 1.5 and potential “black box” concerns here.
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). Last time, we discussed the difficulties navigating legal fees with AI use and if the “black box problem” potentially poses a threat to your legal practice. Keep reading to learn which Model Rules of Professional Conduct you should keep in mind if you have any business interest in AI.
Model Rules 1.7(a)(2), 1.8(a), and/or 1.8(b)
Section (a)(2) of Model Rule 1.7 identifies the existence of a concurrent conflict of interest if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.”[ii]
Model Rule 1.8(a) prohibits a lawyer from knowingly acquiring an “ownership, possessory, security, or other pecuniary interest adverse to the client.” Exceptions are allowed if there is comprehensive, understandable, written disclosure to the client who is then advised to seek independent advice before giving informed consent, in writing.
Model Rule 1.8(b) forbids a lawyer from using information relating to the representation of a client to “the disadvantage of the client” without written consent.[iii]
How do these Rules apply to the extent that the lawyer or another principal in the law firm might have an ownership or other interest in the AI-related product, service, or company?
Next time, Herman discusses how the definition of the “practice of law” responds to the rise of GAI in the legal field.
*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