ANALYSIS: Lawyers Recognize Ethical Duty to Understand Gen AI

Most lawyers believe that generative AI can be used ethically in legal practice—and most also believe that they have an ethical duty to understand it, according to recent survey data from Bloomberg Law. The survey responses from Bloomberg Law’s second 2023 State of Practice Survey also indicate that lawyers want amendments to the American Bar Association Model Rules of Professional Conduct to address generative AI usage.

This summer, Bloomberg Law asked 452 in-house and law firm attorneys for their opinions on legal ethics and the use of generative AI. Almost 70% said that it’s possible to use generative AI in legal practice without violating an ethical duty, and almost as many (66%) said it can be used without violating the ABA Model Rules or state equivalents.

Three-quarters (72%) of the respondents also agreed that an ethical duty exists to understand generative AI—with 38% of the respondents “strongly agreeing” with this.

Given that courts have lashed out against the unchecked utilization of generative AI for legal work, and that multiple rules of professional responsibility are arguably implicated when attorneys use the technology in their work, it makes sense that most attorneys said that some duty exists. It’s more surprising, given the myriad of ethical concerns, that 10% of respondents believed that there’s no ethical duty to understand this technology.

While 10% is far from being a majority, it’s still surprising, given that lawyers in most states have had a duty of technical competence for years. But the ABA Model Rules don’t specifically address generative AI usage, which may be confusing for some attorneys.

This may be changing soon, however. The ABA recently formed a task force to tackle the issues posed by generative AI, a step most lawyers will likely support: A majority of attorney respondents (63%) agreed that the ABA Model Rules should be amended to account for its usage.

Even though change in the legal professional has been notoriously slow when it comes to technology, attorneys’ interest in, and usage of, generative AI has greatly increased in the past year. Ethical rules need to keep up, and attorneys need to make sure they’re aware of the changes and the ethical implications of using the technology.

Bloomberg Law subscribers can find related content on our Legal Operations and In Focus: Artificial Intelligence pages, and our ABA/Bloomberg Law Lawyers’ Manual on Professional Conduct resource.

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