On November 13, 2023, the Florida Bar issued a Proposed Advisory Opinion regarding lawyer’s use of generative Artificial Intelligence (AI), and sought comment from members of the Florida Bar on the proposed opinion. The crux of the proposed opinion addresses concerns regarding (i) lawyers taking reasonable steps to protect the confidentiality of client information and (ii) assurance that lawyers develop policies for reasonable oversight of generative AI use to ensure compliance with ethical standards.
As to confidentiality concerns related to cloud computing, the Advisory Opinion concludes that every lawyer should follow three core standards:
- Ensure that the provider has an obligation to preserve the confidentiality and security of information, that the obligation is enforceable, and that the provider will notify the lawyer in the event of a breach or service of process requiring the production of client information.
- Investigate the provider’s reputation, security measures, and policies, including any limitations on the provider’s liability; and
- Determine whether the provider retains information submitted by the lawyer before and after the discontinuation of services or asserts proprietary rights to the information.
As to Oversight of generative AI, the Florida Bar focusses on the rules regarding nonlawyer assistance. The Proposed Advisory Opinion recommends lawyers make reasonable efforts to ensure that the law firm policies to reasonably assure that the conduct of a nonlawyer assistant is compatible with the lawyer’s own professional obligations, a lawyer must do the same for generative AI. Lawyers who rely on generative AI for research, drafting, communication, and client intake risk many of the same perils as those who have relied on inexperienced or overconfident nonlawyer assistants.
A complete copy of the Proposed Advisory Opinion is available – https://www.floridabar.org/the-florida-bar-news/proposed-advisory-opinion-24-1-regarding-lawyers-use-of-generative-artificial-intelligence-official-notice/