"Proposed Advisory Opinion on Lawyers' and Law Firms' Use of Generative Artificial Intelligence"

From last week's posting by the Florida Bar:

The Board Review Committee on Professional Ethics will consider adopting a proposed advisory opinion at the direction of The Florida Bar Board of Governors based on an inquiry by the Special Committee on Artificial Intelligence (AI) Tools and Resources, at a meeting to be held on Thursday, November 30, 2023, from 1-3 p.m. at the Henderson Beach Resort in Destin, Florida.

There are no drafts for the committee's consideration at this time. The proposed advisory opinion will address:

1) Whether a lawyer is required to obtain a client's informed consent to use generative AI in the client's representation;

2) Whether a lawyer is required to supervise generative AI and other similar large language model-based technology pursuant to the standard applicable to non-lawyer assistants;

3) The ethical limitations and conditions that apply to a lawyer's fees and costs when a lawyer uses generative AI or other similar large language model-based technology in providing legal services, including whether a lawyer must revise their fees to reflect an increase in efficiency due to the use of AI technology and whether a lawyer may charge clients for the time spent learning to use AI technology more effectively;

4) May a law firm advertise that its private and/or inhouse generative AI technology is objectively superior or unique when compared to those used by other lawyers or providers; and

5) May a lawyer instruct or encourage clients to create and rely upon due diligence reports generated solely by AI technology?

Pursuant to Procedures 6(d) and (e) of The Florida Bar Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the issues presented. Comments must contain Proposed Advisory Opinion number 24-1, must clearly state the issues for the committee to consider, may offer suggestions for additional fee arrangements to be addressed by the proposed advisory opinion, and may include a proposed conclusion.

Comments should be submitted to Jonathan Grabb, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than December 1, 2023.