Skip to Main Content
Berkeley Law Library logo

Generative AI Resources for Law Students: Ethical Obligations

This guide provides an overview of generative AI tools, including ChatGPT, and addresses how these tools may be used in law school and in legal practice.

GenAI in Legal Practice - A Range of Ethical Issues

GenAI is rapidly changing the legal landscape, introducing tools that can enhance efficiency in the practice of law. However, with these advancements come significant risks that law students and legal practioners need to understand, including data privacy concerns, potential biases in AI-driven decisions, and the dangers of over-reliance on automated systems.

On July 29, 2024, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued its first opinion on attorneys' use of generative artificial intelligence (GAI). Formal Opinion 512 emphasizes that lawyers and law firms must carefully consider their ethical obligations, including competence, client confidentiality, communication, and reasonable fees, when using GAI, and should stay informed about these tools to make professional judgments on their use.

The following are a few overviews of the many ethical issues raised by the use of GenAi in Legal Practice:

Duty of Competence

Lawyers are required to maintain competence in their practice, which now includes staying informed about the benefits and risks of generative AI tools. This ongoing duty means that lawyers must understand how to use AI tools effectively and ethically.

The duty of competence mandates that lawyers possess a reasonable understanding of the capabilities and limitations of the GenAI tools they employ. This includes staying informed about GAI developments, considering relevant training, and potentially consulting with experts in GAI technology

Duty of Confidentiality

Attorneys have a duty of confidentiality, meaning they must keep all information related to a client's representation confidential, regardless of its source. The duty of confidentiality extends to all information relating to a client's representation, including publicly available information, and even if the information is anonymized, hypothetical, or in abstracted form

Lawyers need to be extremely cautious when entering or uploading client information into GenAI tools, which often lack robust protections to prevent improper disclosure or access. Just like with cloud-based services, there are confidentiality concerns, so it's important to ensure that third-party AI providers can’t access or misuse client data without the right protections in place.

Other Ethical Issues

Beyond the duties of competence and confidentiality, there are a range of other ethical issues:

  • Supervision: Attorneys have a duty to make sure their employees and agents are using technology appropriately.  Attorneys must, therefore, ensure that lawyers and non-lawyers under their supervision are properly trained on the ethical and practical use of generative AI tools and data security
  • Communication: Attorneys must communicate effectively with their clients about GenAI use. This includes obtaining informed consent from clients about using these tools in their representation, as well as discussion of the benefits, limitations, and risks associated with GenAI tools.

Other Ethical Issues