On July 29, 2024, the American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility released its first opinion regarding attorneys’ use of generative artificial intelligence (“GenAI”).  The opinion, Formal Opinion 512 on Generative Artificial Intelligence Tools (the “Opinion”), generally confirms what many have assumed: GenAI can be a valuable tool to enhance efficiency in the practice of law, but attorneys utilizing GenAI must be cognizant of the effect that the tool has on their ethical obligations, including their duties to provide competent legal representation and to protect client information.

The Opinion discusses the use of GenAI in the context of six ethical obligations covered by the ABA Model Rules of Professional Conduct: competence, confidentiality, communication, candor toward the tribunal, supervisory responsibilities, and fees.  With regard to an attorney’s obligation to provide competent advice, the Opinion states that attorneys do not need to become GenAI experts before using the tool to assist clients, but they should have a reasonable understanding of the GenAI’s capabilities and consult experts as needed.  The Opinion also emphasizes that with regard to an attorney’s obligation to maintain client confidentiality, lawyers should, before they input information into a GenAI tool, evaluate the risks that the information will be disclosed to or accessed by others outside the firm.  To assess the risk of disclosure, the Opinion recommends that attorneys review, or consult with a colleague or external expert who reviewed, contractual terms and policies of any GenAI tool they use to learn who has access to the information attorneys input.

The use of artificial intelligence in the legal profession is not new.  For instance, artificial intelligence has been used for years in e-discovery, in which lawyers use technology-assisted review (“TAR”) to categorize vast quantities of documents.  The Opinion’s precautions for attorneys using GenAI are likely familiar to attorneys who have used TAR:  the technology must be understood and performance must be validated.  According to the Opinion, while GenAI may be used as a springboard or foundation for legal work—for example, by generating a draft from which a lawyer produces a legal document—lawyers may not rely solely on a GenAI tool to perform tasks that call for the exercise of professional judgment.  Attorneys should ensure that there is an appropriate degree of independent verification of any GenAI output. 

The Opinion is a helpful reminder to attorneys to be vigilant in complying with ethical rules at all times, including when using GenAI.

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Photo of Michelle Barineau Michelle Barineau

Michelle Barineau counsels U.S. and multinational clients on a broad range of employment issues. Michelle routinely provides guidance pertaining to wage and hour compliance, job classifications, pay equity, and employee leave. She also prepares key employment documents including employment agreements, employee policies, and…

Michelle Barineau counsels U.S. and multinational clients on a broad range of employment issues. Michelle routinely provides guidance pertaining to wage and hour compliance, job classifications, pay equity, and employee leave. She also prepares key employment documents including employment agreements, employee policies, and separation agreements.

Michelle guides employers through hiring and terminating employees and managing their performance, as well as workforce change strategies, including reorganizations, reductions in force, and WARN compliance. In addition, Michelle provides practical advice about workplace issues impacting employers including remote work, workplace culture, diversity, equity, and inclusion, and the use of artificial intelligence in the workplace. She helps clients navigate matters involving harassment, discrimination, non-competition, and other issues arising under state and federal employment laws including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. She assists clients when responding to agency charges and demand letters, including whistleblower retaliation complaints, and frequently interacts with the Equal Employment Opportunity Commission, state and local equal employment opportunity agencies, and the Occupational Safety and Health Administration.

Michelle has experience investigating employment complaints and she frequently partners with white collar colleagues to conduct sensitive internal investigations, workplace culture assessments, and racial equity audits. She works with colleagues in the privacy, employee benefits and executive compensation, and corporate groups when employment matters arise and she regularly works with colleagues in California to advise on matters implicating California employment laws. Michelle is a co-founder of Covington’s AI Roundtable, which convenes senior lawyers at the firm working closely on AI issues to discuss legal implications of AI deployment and use.

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