After seeking comments last fall on a proposed advisory opinion to its members on the ethical use of artificial intelligence by lawyers in the practice of law, the Florida Bar’s review committee has voted unanimously to issue Florida Bar ethics opinion 24-1, the first such opinion by any U.S. jurisdiction about the assuredly revolutionary changes in legal practice and the concomitant perils that lie ahead as a result of AI technology. The advisory opinion’s summary:

“Lawyers may use generative artificial intelligence (“AI”) in the practice of law but must protect the confidentiality of client information, provide accurate and competent services, avoid improper billing practices, and comply with applicable restrictions on lawyer advertising. Lawyers must ensure that the confidentiality of client information is protected when using generative AI by researching the program’s policies on data retention, data sharing, and self- learning. Lawyers remain responsible for their work product and professional judgment and must develop policies and practices to verify that the use of generative AI is consistent with the lawyer’s ethical obligations. Use of generative AI does not permit a lawyer to engage in improper billing practices such as double-billing. Generative AI chatbots that communicate with clients or third parties must comply with restrictions on lawyer advertising and must include a disclaimer indicating that the chatbot is an AI program and not a lawyer or employee of the law firm. Lawyers should be mindful of the duty to maintain technological competence and educate themselves regarding the risks and benefits of new technology.”

The opinion does not address specific AI platforms like Chat GPT-4 because the technology is changing too rapidly. Indeed, this is a built in problem with all legal ethics opinions relating to technology. They go out of date quickly, and it takes months to get an official update approved.

The opinion does not recommend banning AI as some commentators have advocated, taking instead the position that the technology can be a boon to the profession and clients. save lawyers and clients time and money.

Regarding the use of “third-party generative AI programs,” the opinion advises that lawyer request and obtain the “affected client’s informed consent” prior to utilizing such a program if the utilization could involve the disclosure of any confidential information.”

I would recommend that all clients be advised of any use of AI tools, at least until the technology becomes standard practice.estlaw or Lexus.

The section of the opinion subtitled “Oversight of Generative AI,” begins, “Lawyers who rely on generative AI for research, drafting, communication, and client intake risk many of the same perils as those who have relied on inexperienced or overconfident nonlawyer assistants.” It’s a bit depressing that any lawyer would have to be told that, but as has been already seen in several embarrassing incidents in the past year, many do.

The seven page opinion concludes,

“In sum, a lawyer may ethically utilize generative AI technologies but only to the extent that the lawyer can reasonably guarantee compliance with the lawyer’s ethical obligations. These obligations include the duties of confidentiality, avoidance of frivolous claims and contentions, candor to the tribunal, truthfulness in statements to others, avoidance of clearly excessive fees and costs, and compliance with restrictions on advertising for legal services. Lawyers should be cognizant that generative AI is still in its infancy and that these ethical concerns should not be treated as an exhaustive list. Rather, lawyers should continue to develop competency in their use of new technologies and the risks and benefits inherent in those technologies.”

All in all, this is a rather general, unsurprising, boilerplate advisory opinion, and advisory opinions aren’t even binding, meaning that violating the advice in one of them isn’t necessarily sanctionable.  But you have to start somewhere, and artificial intelligence is barreling down the track right at, not only lawyers, but all of us.