Lawyers’ Use of AI in Florida: Navigating Ethical Considerations

Artificial Intelligence (AI) is increasingly transforming various industries, and the legal field is no exception. I’ve been using AI since May of 2023, and it’s getting better and better and improving every day. I’m currently using AI for marketing, drafting emails and correspondence, drafting pleadings and legal documents, deposition prep, and legal research. As this technology quickly advances, the possibilities are mind blowing!

As AI tools become more prevalent, lawyers in Florida are exploring how these technologies can enhance their practice. However, the adoption of AI comes with significant ethical considerations, as outlined in recent Florida Bar Ethics Opinion 24-1. This article delves into the key points that Florida attorneys must keep in mind when integrating AI into their practice, ensuring they adhere to ethical guidelines and provide competent, confidential, and fair services to their clients.

Ethical Guidelines for AI Use in Legal Practice

The Florida Bar Ethics Opinion 24-1, issued on January 19, 2024, provides comprehensive guidance for lawyers using generative AI. This opinion highlights several critical areas where lawyers must exercise caution and diligence.

Confidentiality

One of the foremost concerns is maintaining the confidentiality of client information. Lawyers are required to protect all client information, regardless of its source. When using AI, attorneys must:

• Research the AI program’s policies on data retention, sharing, and self-learning.
• Ensure that any third-party AI service complies with confidentiality obligations.
• Obtain informed consent from clients if their confidential information is shared with or processed by AI.

AI programs that are self-learning pose additional risks, as they may store and use client information in ways that could inadvertently disclose it to third parties in the future. Therefore, using in-house AI systems, where data is stored and managed internally, can mitigate some of these risks.

Competence and Oversight

Lawyers must maintain technological competence, which includes understanding how AI tools work and their potential implications. This involves:

• Verifying the accuracy of AI-generated outputs.
• Supervising the AI’s work product similarly to how they would oversee a nonlawyer assistant’s work.
• Ensuring that AI tools do not independently engage in tasks that constitute the practice of law, such as providing legal advice or negotiating claims.

The lawyer remains responsible for the final work product and must ensure it meets professional standards.

Billing Practices

AI can significantly enhance efficiency, but this must not lead to unethical billing practices. Lawyers should:

• Avoid double-billing or inflating billable hours due to AI’s increased efficiency.
• Consider flat fee or contingent fee arrangements that reflect the true cost and value provided by AI tools.
• Clearly communicate the basis for any fees related to AI use to clients, preferably in writing.

Advertising and Client Intake

When using AI for advertising or client intake, lawyers must adhere to strict guidelines to prevent misleading or coercive communications. This includes:

• Clearly identifying AI chatbots as non-lawyers.
• Ensuring that AI communications comply with advertising rules and do not make unverifiable claims about the lawyer’s services.
• Avoiding any impression that an AI chatbot is a lawyer or law firm employee without proper disclaimers.

Practical Recommendations for Lawyers

To ethically incorporate AI into their practice, Florida lawyers should:

1. Conduct Thorough Due Diligence: Before using any AI tool, investigate its data handling practices, security measures, and compliance with confidentiality requirements.
2. Implement Robust Oversight Mechanisms: Develop internal policies to oversee AI use, including regular audits and validation of AI outputs.
3. Educate Themselves Continuously: Stay informed about advancements in AI technology and evolving ethical standards.
4. Communicate Transparently with Clients: Ensure clients understand how AI is being used in their cases and obtain consent where necessary. It’s a good idea to update your retainer agreement so you can include an AI disclaimer or acknowledgment so you client is given notice of  how you will use AI in their legal matter.

Conclusion

The integration of AI in the legal field offers promising benefits, from enhanced efficiency to improved client service. However, it also necessitates careful consideration of ethical obligations. By adhering to the guidelines outlined in Florida Bar Ethics Opinion 24-1, lawyers can leverage AI responsibly, maintaining the trust and integrity essential to their profession.

(If you’re wondering if I used AI to write this article, what do you think? Of course I did. AI is a great tool and more lawyers should embrace it to be more efficient and provide better client service.)