Extract from The Law Journal Editorial Board’s article “New ABA Rules on AI and Ethics Shows the Technology Is ‘New Wine in Old Bottles'”
On July 29, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 512 on generative artificial intelligence tools. The opinion follows on such opinions and guidance from several state bar associations, as well as similar efforts by non-U.S. bars and regulatory bodies around the world. While the ABA had previously added a commentary to its black-letter model rule on competence that competence includes keeping abreast of “the benefits and risks associated with relevant technology,” generative AI has raised questions as to the continued viability of current rules to address this particular technology. Formal Opinion 512 indicates that the old bottles are sufficient to handle the new wine, but admits that this is not the last word and updated ethical guidance will issue.
Focused on GAI, the opinion addresses six core principles: competence, confidentiality, communication, meritorious claims and candor to tribunal, supervision and fees. A theme of reasonableness underlies the opinion; competence, for example, does not require GAI expertness, but a “reasonable understanding” of the technology’s capabilities and limitations, which cannot remain “static.” How much “independent verification or review” will depend on the circumstances of the task. When the ABA first discussed adding a technological component to the competence rule, concern was raised as to the cost to the smaller firms or solo practitioners. The opinion appropriately does not attempt a one-size-fits-all admonition, but emphasizes the balancing of factors.
