California AI Rules for Lawyers
In mid-November, a Committee working group of the California State Bar released recommendations for the State Bar and for lawyers using AI.
The Committee’s recommendations to the State Bar demonstrate a general embrace of AI in the legal sector with a focus on technical education for law students and practical adaptation within existing rules. (How does this compare with Florida?) It’s worth reading the California Committee’s recommendations in full.
Here are the initial and key recommendations specifically for California lawyers:
Re: Duty of Confidentiality
Lawyers are required to ensure, both individually and in collaboration with IT professionals or cybersecurity experts, that AI systems meet stringent security and confidentiality standards. In cases where a system lacks sufficient protection, lawyers should anonymize and, as a general rule, refrain from entering any confidential client information
Re: Duties of Competence and Diligence
Lawyers should have a reasonable understanding of how the AI technology functions, including its limitations and the relevant terms of use and policies that govern client data usage and exploitation by the product.
Furthermore, “A lawyer’s duty of competence requires more than the mere detection and elimination of false AI-generated results. A lawyer’s professional judgement cannot be delegated to generative AI and remains the lawyer’s responsibility at all times.”
Re: Duty to Comply with the Law
Lawyers must analyze and adhere to relevant laws when utilizing AI tools, including AI-specific regulations, privacy legislation, laws governing cross-border data transfer, intellectual property rights, and cybersecurity issues pertinent to either the attorney or the client.
Re: Duty to Supervise Lawyers and Nonlawyers, Responsibilities of Subordinate Lawyers
Supervisory lawyers must establish clear policies and train subordinates on permissible uses of generative AI; and subordinate lawyers must not use AI in any manner that breaches professional responsibilities even if so directed by their supervisory lawyers.
Re: Client Communication and Fees
“a lawyer should consider disclosure to their client that they intend to use generative AI in the representation, including how the technology will be used, and the benefits and risks of such use.”
Lawyers must explain AI charges and may charge for actual time spent crafting/refining AI inputs and prompts or reviewing/editing outputs, but not for time saved by using AI.