Florida attorneys are now subject to updated guidelines regarding the utilization of generative AI following the unanimous approval of Ethics Advisory Opinion 24-1 by the Board of Governors on January 19.
Following the vote in a conference room in Tallahassee, President Scott Westheimer expressed gratitude to Brian Burgoon, Chair of the Board Review Committee on Professional Ethics, for the committee’s diligent efforts.
Westheimer highlighted the pervasive nature of discussions surrounding this technology during his interactions with legal professionals statewide, emphasizing the substantial impact it has had.
The genesis of Advisory Opinion 24-1 can be traced back to December when it was formally requested by the Special Committee on AI Tools & Resources. Westheimer had announced the formation of this committee during his inauguration in June.
Earlier this year, the special AI committee proposed modifications to several Bar rules, which were subsequently endorsed unanimously by the Board of Governors in December.
One such proposed amendment pertains to Bar Rule 4-1.6, specifically addressing the “Confidentiality of Information.” The proposed addition to the commentary underscores the potential risks associated with generative artificial intelligence concerning a lawyer’s duty to maintain client confidentiality.
While Bar rules are obligatory, the commentary serves as an aspirational guideline. In contrast, advisory opinions hold no binding authority.
The advisory opinion, as requested by the AI committee, delves into various aspects such as the necessity of obtaining a client’s informed consent before employing AI tools, its implications on fees, advertising, competence, and ethical obligations including confidentiality and supervision of nonlawyers.
After publicizing a draft opinion in the Bar News and inviting feedback, the Board Review Committee on Professional Ethics received and deliberated on numerous responses, ultimately endorsing a version of the proposed opinion closely resembling the initial draft.
It is noteworthy that the opinion refrains from singling out specific generative AI platforms due to the rapidly evolving nature of this technology.
Furthermore, the opinion does not advocate for a ban on AI usage, recognizing its potential to enhance efficiency and reduce costs for both lawyers and clients.
One key recommendation entails securing the informed consent of affected clients before engaging a third-party generative AI program that involves divulging confidential information.
While some may challenge this recommendation by drawing parallels to the use of other legal research tools like Westlaw or Lexus, the opinion stresses the importance of oversight when employing generative AI.
The opinion underscores that lawyers leveraging AI must ensure compliance with ethical obligations, encompassing confidentiality, truthfulness, avoidance of frivolous contentions, and adherence to advertising restrictions.
In a related development, the board sanctioned a proposal to caution users about potential errors in AI-generated documents on the E-Filing Portal.
Additionally, the board approved an amendment to Rule 6-3.5, introducing a provision for a “good cause waiver” in certification standards, taking into account an applicant’s expertise, experience, and other relevant factors.
The legal community has voiced concerns about meeting certification standards amidst evolving court practices, with practitioners in various fields highlighting challenges in fulfilling these requirements.
The proposed amendment to Rule 6-3.5 is slated for final consideration by the Supreme Court.
Lastly, the board endorsed the annual audit of The Florida Bar finances for FY 2022-23 by Mauldin and Jenkins, noting the absence of any deficiencies or concerns, as reported by Audit Committee Chair Nikki Lewis Simon.
