Craig Brodsky, Goodell, DeVries, Leech & Dann, LLP, JD Supra; Generative AI and Legal Ethics
"In his scathing opinion, Cullen joined judges from New York Massachusetts and North Carolina, among others, by concluding that improper use of AI generated authorities may give rise to sanctions and disciplinary charges...
As a result, on July 29, 2024, the American Bar Association Standing Committee on Ethics and Professional issued Formal Opinion 512 on Generative Artificial Intelligence Tools. The ABA Standing Committee issued the opinion primarily because GAI tools are a “rapidly moving target” that can create significant ethical issues. The committee believed it necessary to offer “general guidance for lawyers attempting to navigate this emerging landscape.”
The committee’s general guidance is helpful, but the general nature of Opinion 512 it underscores part of my main concern — GAI has a wide-ranging impact on how lawyers practice that will increase over time. Unsurprisingly, at present, GAI implicates at least eight ethical rules ranging from competence (Md. Rule 19-301.1) to communication (Md. Rule 19-301.4), to fees (Md. Rule 19-301.5), to confidentiality, (Md. Rule 19-301.6), to supervisory obligations (Md. Rule 19-305.1 and Md. Rule 305.3) to the duties of a lawyer before tribunal to be candid and pursue meritorious claims and defenses. (Md. Rules 19-303.1 and 19-303.3).
As a technological feature of practice, lawyers cannot simply ignore GAI. The duty of competence under Rule 19-301.1 includes technical competence, and GAI is just another step forward. It is here to stay. We must embrace it but use it smartly.
Let it be an adjunct to your practice rather than having Chat GPT write your brief. Ensure that your staff understands that GAI can be helpful, but that the work product must be checked for accuracy.
After considering the ethical implications and putting the right processes in place, implement GAI and use it to your clients’ advantage."
