ChatGPT Doesn’t Have Ethical Obligations, But Attorneys Do

Widespread use of generative artificial intelligence technologies like ChatGPT are driving rapid change in the legal profession. GAI can revolutionize the legal industry, when used responsibly and alongside human lawyers.

As with any transformative technology, it’s also stirring up controversy, including concerns that its use could lead to violations of lawyers’ ethical obligations. Conversely, lawyers who don’t understand GAI’s limitations and potential—or who resist using GAI—may violate the duty to competently represent their clients.

It’s essential for attorneys to understand the potential pitfalls and shortcomings of this technology. Failure to do so can lead to disastrous results, as we’ve already seen in cases where lawyers blindly relied on ChatGPT to prepare court filings, to their detriment.

Lawyers often receive assistance from paralegals, legal databases, or, more recently, AI tools, when drafting legal documents, but the ethical rules impose a gatekeeping role on attorneys to ensure the accuracy of the resulting content. The takeaway is that lawyers should never assume GAI outputs are accurate and must scrutinize GAI output as if a junior attorney or paralegal had produced the content.

Still, opting to ignore GAI is not the simple solution for lawyers. Model Rule 1.1 states, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

In the context of using AI tools, Comment 8 to this rule explicitly states “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” This language is deliberately vague to accommodate evolving technologies, such as GAI.

In the era of AI, the professional axiom stands truer than ever: “AI won’t replace lawyers, but lawyers who use AI will replace lawyers who don’t.” The ABA’s Commission on Ethics 20/20 stated, “Lawyers must understand technology in order to provide clients with the competent and cost-effective services that they expect and deserve.” This reinforces the notion that lawyers must stay current and understand new tools to effectively and competently use them to represent their clients.

Judges agree, and one court recommended sanctions for an attorney who failed to leverage technology to meet ethical obligations, saying that “deliberate ignorance of technology is inexcusable” and that if “a lawyer cannot master the technology suitable for that lawyer’s practice, the lawyer should either hire tech-savvy lawyers tasked with responsibility to keep current, or hire an outside technology consultant who understands the practice of law and associated ethical constraints.”

A key ethical obligation is the duty to supervise non-lawyer assistance. In 2012, the title of Model Rule 5.3 was changed to explicitly state that the rule encompassed any “non-lawyer assistance,” whether human or not. This requires lawyers to review GAI-generated products. Failure to do so can lead to serious consequences.

Under Federal Rule of Civil Procedure 11, a court may sanction an attorney for misrepresenting facts or making frivolous legal arguments. Many states have adopted similar rules. For example, Rule 3.3.(a)(1) of the New York Rules of Professional Conduct prohibits lawyers from making false statements of fact or law to a court and requires correction of any false statements previously made during the case.

This is the time to leverage GAI’s transformative potential, but some lawyers are unsure how to start. Some best practices can help them responsibly adopt the technology.

Establish clear, written policies regarding the use of GAI to ensure responsible use and legal compliance. Form a group of cross-functional stakeholders to carefully evaluate the potential risks and benefits of incorporating the new technology and determine the appropriate policies and procedures that need to be put into place.

Understand GAI’s risks, including confidentiality breaches and “hallucinations” where GAI invents facts and presents them with confidence. Users must understand GAI’s technical limitations and terms of service, which provide information regarding how the data entered could be used. They must take measures to mitigate the risk of a potential breach of the attorney-client privilege or the unauthorized sharing of confidential information.

Focus on education. Beyond general awareness, firms should establish comprehensive training programs and materials for employees. This may include items such as hands-on workshops, online learning platforms, or working with consultants who specialize in this area and can tailor programs to organizations’ specific needs.

These considerations are helpful for forward-thinking legal professionals who seek to outpace competition and excel in an AI-augmented world.

We have a unique opportunity to leverage GAI to drive innovation, enhance efficiency, and even contribute to a more equitable society. By striking the right balance with a careful, strategic, and ethical approach, lawyers and their clients can reap the full benefits of this transformative technology.

Those who seize this opportunity will position themselves at the forefront of a more innovative and client-centric legal profession.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Natalie A. Pierce is partner and chair of the Employment & Labor practice at Gunderson Dettmer.

Stephanie L. Goutos is a practice innovation attorney at Gunderson Dettmer.

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