Andrew M. Perlman (Dean, Suffolk; Google Scholar), The Legal Ethics of Generative AI, 57 Suffolk U. L. Rev. 345 (2024):

The legal profession is notoriously conservative when it comes to change. From email to outsourcing, lawyers are often slow to embrace new methods of delivering legal services and quick to point out potential problems, especially ethics-related concerns.

The legal profession’s approach to generative artificial intelligence (generative AI) is following a similar pattern. Many lawyers have readily identified the legal ethics issues associated with generative AI, often citing a New York lawyer who cut and pasted fictitious citations from ChatGPT into a federal court filing. Some judges have gone so far as to issue standing orders requiring lawyers to reveal when they use generative AI or have banned the use of most kinds of artificial intelligence (AI) outright. Bar associations are chiming in on the subject as well, though they have (so far) taken an admirably open-minded approach. 

Part II of this essay explains why the Model Rules of Professional Conduct (Model Rules) do not pose a regulatory barrier to lawyers’ careful use of generative AI, just as the Model Rules did not ultimately prevent lawyers from adopting many now-ubiquitous technologies. Drawing on my experience as the Chief Reporter of the ABA Commission on Ethics 20/20 (Ethics 20/20 Commission), which updated the Model Rules to address changes in technology, I explain how lawyers can use generative AI while satisfying their ethical obligations. Although this essay does not cover every possible ethics issue that can arise or all of generative AI’s law-related use cases, the overarching point is that lawyers can use these tools in many contexts if they employ appropriate safeguards and procedures.

Part III describes some recent judicial standing orders on the subject and explains why they are ill-advised.

The essay closes in Part IV with a potentially provocative claim: the careful use of generative AI is not only consistent with a lawyer’s ethical duties, but the duty of competence may eventually require its use. The technology is likely to become so important to the delivery of legal services that lawyers who fail to use it will be considered as incompetent as lawyers today who do not know how to use computers, email, or online legal research tools.

Editor's Note:  If you would like to receive a daily email with links to legal education posts on TaxProf Blog, email me here.