Washington Lawyer - September/October 2024 - 41

SPEAKING OF ETHICS
GAI program will be visible to the provider and/
or users. If so, or if the question is in doubt, the
lawyer could potentially resolve the problem by
negotiating additional data security measures
with the provider that prevent disclosure of Rule
1.6-protected information to third parties.⁵
Second, the lawyer must determine if their interactions
with the GAI tool generate responses
that could enable future users to access confidential
client information. If so, there does not
seem to be any alternative other than for the
lawyer not to use this particular GAI product.⁶
Importantly, lawyers should be careful not to
share their privileged mental impressions relating
to specific clients and matters that are susceptible
to inadvertent disclosure through follow-up
inquiries and dialogue with the GAI
product. This risk may increase when lawyers
decide that imputing more detailed case information
might provide better results.⁷
RESPONSIBILITIES OF
SUPERVISORY LAWYERS
Pursuant to Rule 5.1 (Responsibilities of Partners,
Managers, and Supervising Lawyers), supervisory
lawyers must make reasonable efforts
to ensure that (1) the firm or agency has implemented
measures sufficient to ensure that all
firm/agency attorneys comply with the Rules
and (2) lawyers with direct supervisory authority
over another lawyer make reasonable efforts
to ensure that the subordinate obeys the Rules.
Rule 5.3 extends these supervisory lawyers' responsibilities
to nonlawyers working in or for
the firm/agency.
In the GAI context, supervisory lawyers have a
duty to determine whether their subordinate
lawyers and nonlawyer assistants will be using
GAI programs in connection with a client representation
and, if so, to ensure their compliance
with the Rules in doing so - certainly including
the duty to maintain client confidences and
secrets, as discussed previously.
At the very least, as we learned from the ethical
lapses of the lawyers in Mata, supervising lawyers
should require the individuals under their
supervision to verify the accuracy of any GAI
output upon which they rely. Moreover, the supervising
lawyers should also consider whether
the time and costs associated with the verification
process render the use of the GAI inefficient
or uneconomical.
As LEO 388 notes, once a firm/agency has vetted
a particular GAI tool for particular use, it
could permit its lawyers to use only that product
for that specified purpose. However, with
ever-changing technology, lawyers must remain
ever-diligent to keep abreast of possible
changes in their selected GAI products and
providers' operations and processes.
DUTIES TO THE TRIBUNAL
AND OPPOSING PARTY
For matters pending before a tribunal, the use
of GAI-generated output that contains misrepresentations
of facts or law - or, as in Mata,
provides " hallucinatory citations " - also implicates
the lawyer's duties to the tribunal and to
the opposing party and counsel,⁸ particularly
where the tribunal has adopted specific rules
or procedures or issued orders requiring disclosure
of the use of GAI and verification of GAI
outputs.⁹ As such, lawyers must be diligent
about these obligations, including the duty
to correct the record in some circumstances.
REASONABLE FEES
Although the Legal Ethics Committee's discussion
of fee issues regarding the use of GAI
is broad and comprehensive, I submit that
the lawyer's duties in the GAI context are addressed
by the current Rule and, in any event,
are patently obvious. Pursuant to Rule 1.5(a), " a
lawyer's fee shall be reasonable. " Although the
Rule does not establish a clear " bright line " in
this regard, it does provide a nonexclusive list
of eight factors that might be considered in assessing
the fee's reasonableness. Pursuant to
Rule 1.5(b), three elements must be included in
the mandatory writing that a lawyer must deliver
to a client: the fee, the scope of the representation,
and the expenses for which the
client will be responsible.
If the lawyer intends to bill the client separately
for out-of-pocket costs relating to the lawyer's
use of GAI, that information must be specified
in the fee agreement. Second, as a general
proposition, it should not be surprising that any
lawyer efficiency accrues to the benefit of the
client. Thus, if a lawyer billing hourly saves time
through the use of GAI, that benefit accrues to
the client and the lawyer may not bill the client
for time not actually spent on the client's case.
CLIENT FILE
The District of Columbia is an " entire file " jurisdiction
such that when a representation ends
- because the matter has concluded, the lawyer
has withdrawn, or the client has discharged
the lawyer - the lawyer must surrender " papers
and property to which the client is entitled. " 10
In
the GAI context, LEO 388 advises that
" [a]lthough lawyers are not required to retain
every piece of paper or electronic datum generated
or received during a client representation,
a lawyer should consider whether specific
interactions with GAI in connection with a
client matter should be retained as part of the
client file. "
CONCLUSION
In his 2023 Year-End Report on the Federal Judiciary,
U.S. Supreme Court Chief Justice John Roberts
may have said it best: " any use of AI requires
caution and humility. " While GAI will
almost certainly become a valuable tool that
benefits lawyers and clients alike, there is overwhelming
consensus that we are not there yet.
As such, lawyers using GAI must be careful to
consider the critical underlying ethical issues
discussed here and in LEO 388.11
Finally, because GAI is currently so manifestly
unreliable, lawyers must exercise great care in
relying upon such provider output without
comprehensive and careful verification. Although
completely unnecessary in this context,
were readers to check and verify all aspects of
this article, for example by contacting the author
directly, they would discover that the aptly
named " Craven " poem was written by none
other than ChatGPT.
D.C. Bar legal ethics counsel are available for confidential
inquiries on the Legal Ethics Helpline at
202-737-4700, ext. 1010, or at ethics@dcbar.org.
NOTES
1 678 F. Supp. 3d 443 (S.D.N.Y. 2023).
2 ABA Model Rule 1.1, comment [8], specifically
cites a lawyer's duty to " keep abreast of changes
in the law and its practice, including the benefits
and risks associated with relevant technology .... "
(Emphasis added.) This comment is cited with
approval in D.C. Legal Ethics Opinion 371. See
also LEO 388 for a comprehensive discussion of a
lawyer's duty to understand GAI technology, how
it works, and possible methods for obtaining
competency in this area.
3 The Legal Ethics Committee limits its discussion
specifically to generative artificial intelligence
continued on page 44
SEPTEMBER/OCTOBER 2024 * WASHINGTON LAWYER 41
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