Ethics 3.0 - Attorney Responsibility in the Age of Generative AI

Abstract

A lawyer’s duty to remain competent and diligent in light of technological change begins with the Model Rules but it must extend to the substantive relevant law. This article focuses on the obligations of client confidentiality, the duty to understand cybersecurity, the need to exploit the new technologies of generative AI and the metaverse with caution, and the need to communicate in a permissible manner. These are all key obligations under the ABA Model Rules of Professional Conduct related to the use of technology. The Model Rules provide a normative guideline that goes beyond the technical requirements for minimum competency and may provide standards for professional malpractice liability and other legal standards, but they are only a start. To fully understand the scope of the lawyers’ duty regarding technology, the practitioner must also look at state and federal regulations including HIPAA) data privacy and security rules, digital exportation under the Export Administration Act and the International Traffic in Arms Regulations, state consumer privacy laws, FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising and similar truth-in-advertising obligations, and more.

Note: Copyright 2023 American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Keywords: ABA, Model Rules, Code of Professional Conduct, AI, artificial intelligence, cybersecurity, HIPAA, confidentiality, competence, lawyer, practice of law

JEL Classification: K1, K10, K23, K40, K49