Once safely confined to the realm of science fiction, AI is now an undeniable reality. AI driven tools are rapidly evolving and becoming indispensable across industries, including the legal field. Attorneys now have access to AI-powered research assistants, contract review software, and even tools that help predict case outcomes. While these technologies have the potential to increase attorney efficiency and innovation, they also raise important ethical questions, such as should clients know when their attorney is using AI in their case? This article explores key concerns surrounding confidentiality and informed consent.
It is widely known that attorneys are ethically obligated to protect client information. This requirement is memorialized in the American Bar Association (ABA) Model Rules of Professional Conduct, specifically Rule 1.6. This rule requires attorneys to safeguard client confidences, subject to only a few enumerated exceptions. But what does this mean in the context of AI use?
Many AI-driven tools are cloud-based or rely on external databases, which could pose risks of data exposure. If an AI tool processes confidential client information, attorneys need to do their homework to ensure the tool meets security standards and does not inadvertently disclose sensitive data. Adding to the complexity, many jurisdictions have yet to establish clear rules on how AI interacts with attorney-client confidentiality, leaving law firms to navigate this new landscape largely unguided.
One helpful resource in this area, ABA’s Formal Opinion 512 on AI use published on July 29, 2024, suggests that:
ecause many of today’s self-learning tools are designed so that their output could lead directly or indirectly to the disclosure of information relating to the representation of a client, a client’s informed consent is required prior to inputting information relating to the representation into such tool.
The ABA recommends that attorneys proactively discuss AI use with clients. Best practices involve explaining the benefits and risks of AI tools to clients and clarifying their role in legal work. Attorneys should avoid inputting confidential information into an AI system, or at the very least, obtain informed consent from the client before doing so.
From the client perspective, proactive communication ensures clients remain in control of how their sensitive information is handled. The best approach is for all parties to discuss AI use, address potential risks, and obtain informed consent, when necessary, before using AI tools. As the legal field adapts to AI, maintaining transparency will be crucial in preserving client trust.
At PLDO, our attorneys stay on top of how AI use and standards are evolving, with particular consideration on ethical responsibilities. If you have questions or would like further information, please contact PLDO Attorney Paige E. Macnie at 401-824-5100 or [email protected].
