On July 29, the American Bar Association's Standing Committee on Ethics and Professional Conduct issued Formal Opinion 512 on generative artificial intelligence tools. The opinion follows comments and guidance from several state bar associations, as well as similar efforts by non-US bar associations and regulatory agencies around the world. The ABA previously added commentary to its Black Letter Model Rules on Competence stating that competence includes grasping the “benefits and risks associated with the relevant technology,” but Generative AI (GAI) has questioned the continued viability of the current rules to address this particular technology. Formal Opinion 512 indicates that it is sufficient to treat new wine in old bottles, but acknowledges that this is not the final conclusion and that updated ethics guidance will be issued.
The GAI-focused opinion addresses six fundamental principles: competency, confidentiality, communication, good faith in legitimate claims and adjudication, oversight, and fees. Reasonableness underpins the opinion. For example, competency does not require GAI expertise, but it does require a “reasonable understanding” of the capabilities and limitations of the technology, which cannot remain “static.” The extent to which “independent verification or review” is required varies depending on the context of the work. When the ABA first discussed adding a technology element to the competency rules, concerns were raised about the costs to small firms and solo practitioners. The opinion appropriately emphasizes balancing of factors without attempting a one-size-fits-all caveat.