ABA Formal Opinion 512: The Paradigm for Generative AI in Legal Practice

As Generative Artificial Intelligence programs have gotten more refined, the applications for this new technology have expanded into the legal sphere. Stories of GenAI blunders, specifically hallucinations in legal documents have made the rounds in major news outlets, with these blunders highlighting major ethical implications on the use of GenAI in legal work. While Generative AI has been a popular topic of conversation for years, the new technology has caused ethical issues that do not have an easy answer.

In an attempt to streamline ethical proceedings for lawyer’s utilizing GenAI, the American Bar Association published Formal Opinion 512 – “Generative Artificial Intelligence Tools,” on July 29, 2024. This opinion established the current ethical obligation paradigm for lawyers in the use of GenAI.

Formal Opinion 512 discussed numerous areas of ethical considerations for lawyers, with major themes being their duties under the ABA Model Rules of Professional Conduct, including competence, confidentiality, communication with clients, maintaining candor toward tribunals, supervisory responsibilities, and charging reasonable fees. These new guidelines build on several Model Rules of Professional Conduct, including Model Rule 1.1 (competence), 1.6 (confidentiality of information), and 5.3 (responsibilities regarding nonlawyer assistance).

With competence being a major theme, the ABA is asserting that there is a requirement to maintain technological competence with evolving technologies such as AI. In short, the days of blatant AI misuse are over. Now it is time to utilize the technology correctly and ethically, while keeping up to date on the advancements being made.

The Landscape of GenAI Prior to Formal Opinion 512

Prior to Formal Opinion 512, individual states were leading the way in establishing ethical guidelines for GenAI usage. As early as 2023, Texas, Illinois, California, and other state level taskforces and Bar Associations released opinions on AI use and ethical considerations for lawyers. These opinions were followed by numerous states in 2024, and finally Formal Opinion 512 established the current ABA guidelines in July of 2024. These guidelines and considerations are vital in minimizing legal blunders and oversight that can occur when utilizing GenAI. 

As with all new technologies, there has been much hesitance to utilize GenAI for legal work. This hesitance was only exacerbated as AI hallucinations in legal documents received more and more media attention, with publications like The New York Times and The Washington Post publishing articles on the dangers of oversight in utilizing GenAI. While AI was at one point a new technology with no clear roadmap on usage, this is no longer the case as the last two years have seen numerous opinions and considerations posted for ways to progress with this technology.

The Current Landscape

Responses to Formal Opinion 512 have been positive, with many acknowledging the dangers in making mistakes in AI usage in legal proceedings which necessitates established ethical considerations for AI usage. An important note on this opinion is that these considerations are open to interpretation and as such still offer freedom in using or not using GenAI for assistance (Horrigan, 2024). One writer mentioned the note that Formal Opinion 512 is the new rulebook, officially, which means that ignorance of ethical considerations and guidelines is not acceptable (Eliot, 2024). In a similar vein, the Tech-Savvy Lawyer argued that Formal Opinion 512 is the ABA’s way of saying that adapting to new technology, including AI, is a requirement of the job.

As Generative AI continues to permeate throughout different sectors, it is clear that this technology is here to stay. Many companies are attempting to establish their own individual approaches to AI usage. One notable example of this is Thomson Reuters who has taken the stance of necessitating a “human in the loop,” such as utilizing educated attorney editors who work with technologists to train the systems, writing informed prompts for GenAI programs, and having a human attorney read and validate every result before using it in a brief or contract. This generally seems to be the best practice accepted by many who are interested in utilizing GenAI for legal work. 

As GenAI has become more accepted as a new tool for increasing productivity and streamlining workflow, the possibilities for utilization are expanding. Explorations of ways to expedite the work process range from conducting legal research, to polish legal writing, or even AI utilization for ADR. Erin Palmer, Associate Director of the Corporate Pro Bono, noted the aid that AI could offer in Pro Bono work while also acknowledging the inequity that AI can pose. Advanced AI programs are quite expensive in their current iterations and are often unaffordable for smaller organizations. Many questions remain as to how these costs can be fairly passed on to clients, with Formal Opinion 512 acknowledging many of the possible ethical issues that AI usage can have on billing clients. 

The Bottom Line

Whether loved or hated, GenAI is changing the landscape of work for the foreseeable future. Ethical guidelines and considerations have been streamlined with Formal Opinion 512, but this is an ever evolving project to maintain clear and contemporary guidance. Remaining up-to-date on the changing landscape and possible uses for GenAI is beginning to look like a requirement for legal professionals moving forward.