Here is my recent Daily Record column. My past Daily Record articles can be accessed here.
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Florida’s Professional Conduct Rules Now Include AI—But Was It Needed?
When faced with the impact of a potentially disruptive technology, our profession follows a very predictable path: ignorance, indifference, overreaction, readjustment, begrudging acceptance, and finally, appreciation. With the sudden emergence and advancement of generative artificial intelligence (AI), the cycle has started, and all signs point to deep entrenchment in the overreaction phase.
OpenAI released ChatGPT 3.5 nearly two years ago, in November 2022. Since then, AI’s effects have been inescapable, rapid, and significant, with unavoidable cascading changes occurring. Headlines about lawyers relying on generative AI tools and submitting briefs to courts that include fake case citations have only amplified already heightened and overblown concerns about AI.
These reactions are unsurprising given AI’s wide-ranging potential to revamp core legal functions, from legal research and document drafting to litigation analytics and contract review. In the face of inevitable change, our profession is now focused on whether AI is a tool that will enhance their practices or a force that could undermine or even replace the practice of law as we know it.
In response to these concerns, several jurisdictions across the United States have formed AI committees, issued guidance, or authored opinions to help lawyers navigate a strange new world where AI runs rampant. More than eight states, including Florida, California, and Michigan, have taken formal steps to address AI’s role in legal practice.
While these efforts are welcome to the extent that they help to encourage adoption, they are arguably unnecessary. Current rules and guidance on technology usage are more than sufficient.
The most recent efforts arose in Florida, where the Bar took the extreme step of modifying the Rules Regulating The Florida Bar to include references to generative AI. On August 29, the Florida Supreme Court adopted the amendments proposed by the Bar. These changes will go into effect on October 28.
One update was to the comment regarding the competency requirement. It now advises that lawyers must stay on top of technology changes, “including generative artificial intelligence.”
Additionally, the duty of confidentiality now includes the obligation to “be aware that generative artificial intelligence may create risks to the lawyer’s duty of confidentiality.”
Similarly, the duty of supervision now requires that supervising attorneys must “consider safeguards for the firm’s use of technologies such as generative artificial intelligence, and ensure that inexperienced lawyers are properly supervised.”
Finally, Rule 4-5.3, which addresses lawyers’ responsibilities regarding nonlawyer assistants, now requires that a “lawyer should also consider safeguards when assistants use technologies such as generative artificial intelligence.”
These amendments were unnecessary and unwise and will not withstand the tests of time. AI is simply a new tool. Other technologies preceded it, and new ones will follow. It is not the be-all and end-all of technology or our profession, and trying to ban or reduce its use by lawyers is a pointless, ineffectual endeavor that fails to serve the needs of our profession in the AI era.
The reactions by state bars to AI are entirely predictable. No matter the technology, our profession has tried to regulate it, from email and the Internet to social media and cloud computing.
Demonizing new technology and banning its use have been par for the course. Eventually, however, a resigned acceptance set in as each tool became commonplace. AI will be no different.
This same cycle is occurring with AI. Soon, we’ll move on from overreaction to the later phases, ultimately landing on appreciation. This process will happen much faster than it has in the past due to AI’s rapid rate of advancement. So buckle up, shore up your AI knowledge, and hold on, folks! The times are a-changin’ and quickly. Catch up while you still can!
Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at MyCase, CASEpeer, Docketwise, and LawPay, practice management and payment processing tools for lawyers (AffiniPay companies). She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.