[These FAQs are neither legal advice nor an ethics opinion, and are not a substitute for your obligation to adhere to the requirements of the Michigan Rules of Professional Conduct (MRPC), the Michigan Code of Judicial Conduct , statutes, court rules, and/or case law and to review ethics opinions. This document does not reflect the ethical implications of any updates, modifications, or added features.]
Introduction
Applicable Rules
Duty of Competence
Duty of Diligence
Duty of Confidentiality
Duty of Communication
Fees
Lawyers are using artificial intelligence (AI)[1] increasingly in their legal practices to improve the services they provide to their clients. The definition of artificial intelligence is “the capability of a machine to imitate intelligent human behavior.”[2] There are many ways that lawyers may use AI to perform the daily tasks of a law practice and to improve productivity and provide better legal services to their clients.
AI offers cutting-edge advantages and benefits, but it also raises ethical questions that lawyers must consider. Lawyers must know where to draw the line when deciding whether to allow the AI tool to handle the task at hand. Lawyers are both encouraged to stay on top of technology, including AI, but at the same time should be careful that their use of AI is consistent with their ethical obligations. Ultimately, it is a balancing act. Lawyers should be aware of the benefits and the limitations of every tool used for the benefit of their client.
The following are general principle FAQs that today’s lawyers should consider in their daily legal practice when determining how to balance their use of artificial intelligence. However, this is not an all-encompassing list of ethical issues that face lawyers, as AI continually changes but instead provides the basic framework of ethical issues to consider prior to using any AI tool.
Do the Michigan Rules of Professional Conduct apply when a lawyer uses AI through their practice?
Yes. A lawyer must continue to abide by the Rules of Professional Conduct when utilizing artificial intelligence or similar technology through their practice.[3]
What rules of professional conduct must be considered when using artificial intelligence?
All Rules of Professional Conduct must be considered when using artificial intelligence, but there are a number of ethical duties that are more relevant. They are as follows:
- MRPC 1.1: Duty of Competence
- MRPC 1.3: Diligence
- MRPC 1.4: Duty of Communication
- MRPC 1.6: Confidentiality of Information
- MRPC 2.1: Advisor
- MRPC 3.3: Candor toward a Tribunal
- MRPC 4.1: Truthfulness in Statement to Others
- MRPC 5.1 and 5.3: Duty to Supervise
- MRPC 7.1: Communication concerning Legal Services
- MRPC 8.4: Misconduct
Does a lawyer have an ethical obligation to understand the use of artificial intelligence or similar technology?
In accordance with MRPC 1.1, lawyers have an ethical obligation to understand technology, including artificial intelligence (AI). Some AI, including automatic drafting services, may not check case cites to ensure the case has not been overturned, or worse, may completely fabricate (also known as “AI hallucination”) information and make up citations in order to support it. Lawyers must ensure that when a legal document is generated for a client, the lawyer must review[4] all information generated to confirm that all information and cites are correct. This is especially important when any document is filed with a court or tribunal to ensure a lawyer does not violate MRPC 3.3.
The duty of competence requires lawyers to be informed, and up to date, on current technology. As one article points out, there does not appear to be any instance “in which AI represents the standard of care in an area of legal practice, such that its use is necessary.”[5] Nonetheless, lawyers generally must understand the technology available to improve the legal services they provide to clients. Lawyers have a duty to identify the technology that is needed to effectively represent the client, as well as determine if the use of such technology will improve service to the client.[6]
Is a lawyer responsible for any incorrect information that is generated by an artificial intelligence program?
Yes. Lawyers are responsible for all legal documentation[7] whether drafted by their own hand or through a technological program similar to all legal documentation drafted by the lawyer’s staff. See MPRC 5.1 and 5.3. As stated in RI-349, “the Rules of Professional Conduct do not preclude the reliance on nonlawyer assistants as the exclusive communication link in some matters and situations, the risk of the lawyer’s failure to meet professional obligations is so increased that the practice should be carefully considered and astutely managed.” The same analysis would apply to the use of artificial intelligence tools. Lawyers certify, in part, through their signatures on court documents that to the best of their knowledge, information and belief formed after reasonably inquiry, the documents are well grounded in fact, and are warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. See MCR 1.109(E)(5); Fed. R. Civ. P. 11(b)(2). Because AI-generated searches have the capability of creating results that are not grounded in existing law, lawyers submitting documents to courts based on AI-generated searches are at risk of violating their professional responsibilities and exposing themselves and their clients to sanctions. See MCR 2.302(G)(4); Fed. R. Civ. P. 11(c). See also Mata v Avianca, Inc., F.Supp. 3d (S.D.N.Y. June 22, 2023) (sanctioning lawyers $5,000 for filing brief that included non-existent judicial opinions with fake quotes and fake citations created by artificial intelligence tool).
Should using artificial intelligence to research be treated similarly to drafting?
Yes. Artificial intelligence may assist lawyers when researching, compiling information, and analyzing data in a more expedient fashion. However, lawyers must ensure that the work product they produce when researching or drafting pleadings complies with all court rules and rules of professional conduct. Therefore, it is imperative that lawyers check cites and information for accuracy, including but not limited to citations and source materials.
What is a lawyer’s obligation regarding confidentiality when using artificial intelligence?
A lawyer must keep all confidences and secrets when inputting client information into any type of program. This information may be used by the AI tool in a variety of ways, including but not limited to generating future responses to queries. Information may be collected once submitted or even when simply typed into the program. Therefore, lawyers must use extreme caution prior to inputting any client confidential data into an AI tool. Lawyers should only input information that does not fall under lawyer-client privilege or confidences and secrets protected under MRPC 1.6. If it is necessary to input any protected information, the lawyer must first receive the client’s consent under MRPC 1.6(c)(1). Lawyers must remember that once information is entered into an artificial intelligence program, the information may no longer be considered their own and may be available to any person or entity that may access the program.
If a lawyer elects to utilize an AI tool and decides to input confidential information and has received client consent, the lawyer must take reasonable steps to determine whether the AI provider has adequate security measures are in place to maintain and protect client confidences and secrets. Per Ethics Opinion RI-381, “[l]awyers have ethical obligations to understand technology, including cybersecurity [and] take reasonable steps to implement cybersecurity measures.” See MPRC 1.1, 1.4, and 1.6; see Cybersecurity FAQs.
Is there a duty to provide additional information to a client than what the AI tool suggests or produces?
Yes. MRPC 2.1 provides that “a lawyer shall exercise independent professional judgment and shall render candid advice.” It further states that “a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.” When communicating with a client regarding the final product that an AI tool produced, i.e., a brief or conducted research, the lawyer should not rely solely on the AI tool and should ensure that all factors and considerations are communicated to the client as to how the proposed plan of action benefits and hinders the client’s case. This may require independent professional judgement irrespective of the AI tool’s output.
How should a lawyer charge a client when using artificial intelligence for drafting documents or conducting research?
Michigan Rule of Professional Conduct 1.5(a) sets forth the criteria to be used by a lawyer when setting a reasonable fee for legal services.
The same criteria apply when using an artificial intelligence program in practice. In ethics opinion RI-150, the Committee opined that “under no circumstances is it appropriate to charge the client for more than the time actually spent on that client’s case[.]”Although technological advances in telecommunications and computerized legal research have allowed lawyers to render service more efficiently, the “actual time expended” principle remains valid. For example, if a lawyer uses ChatGPT to draft a motion and it takes 15 minutes to input data and for the program to draft the motion, the client should only be charged for 15 minutes for drafting the motion and not the approximately three hours that a lawyer would otherwise expend to draft a similar motion unassisted by artificial intelligence. On the other hand, a lawyer may charge for the actual time to review the motion, validate citations, and otherwise exercise independent professional judgment in finalizing the work product.
The factors set forth in MRPC 1.5(a) also apply when evaluating the reasonableness of flat and contingency fees.8 For example, if using an AI tool enables a lawyer to complete tasks much more quickly than without the tool, it may be unreasonable under Rule 1.5 for the lawyer to charge the same flat fee when using the AI tool as when not using it. “A fee charged for which little or no work was performed is an unreasonable fee.”9
[1] While there is no singular definition of artificial intelligence, it encompasses the use of technology, software, and various systems to perform tasks which normally require human intelligence, such as visual perception, speech recognition, drafting, decision-making, and translation.
[4] Note MRPC 7.1(a) which provides that “[a] communication shall not (a) contain a material misrepresentation of fact or law, or omit a fact necessary to make a statement considered as a whole not materially misleading.”
[8] See, e.g., Williams Cos. v. Energy Transfer LP, 2022 Del. Ch. LEXIS 207, 2022 WL 3650176 (Del. Ch. Aug. 25, 2022) (applying same principles to contingency fee).
[9] Att’y Grievance Comm’n v. Monfried, 794 A.2D 92, 103 (Md. 2002) (Lower court’s finding was clearly erroneous in failing to find violation of Rule 1.5 where lawyer charged a flat fee of $1,000 and did little or no work to earn); In re Gerard, 132 Ill. 2d 507, 525, 548 N.E.2d 1051 (Il. 1989) (Lawyer must consider the reasonableness of a fee at the time the contract is entered into and at the time the fee is recovered.)
Last updated: May 2024