California Bar to Set Guidelines for Using Generative AI to Practice Law, More States to Follow

Can generative AI offer legal advice? On November 16, 2023, the State Bar of California approved guidelines to help lawyers navigate their ethical obligations when using generative artificial intelligence (AI). Titled “Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law,” the guidance sets forth the initial recommendations of the Committee on Professional Responsibility and Conduct of the California State Bar regarding use of generative AI in practice of law. Guidance to California Lawyers is in line with the State Bar’s Rules of Professional Conduct and the state’s statutory authority and includes the following:

California Bar’s guidance marks a much needed first step for developing rules and regulations on AI use in law. Other state bars are also working on AI guidance – the Florida Bar’s proposed opinion on lawyers’ AI use is open for comment until January 2, 2024. In the Fall 2023 issue of the State Bar Journal, the North Carolina State Bar published an article by its ethics counsel listing key ethical considerations for the use of AI in the legal profession. Although the practice of law is governed by states, federal guidance may soon become imperative for consistency across the nation. Along the way, the fundamental questions to be addressed include identifying what activities constitute the practice of law and what activities if any, can leverage the use of AI. As AI increasingly becomes a necessary resource for lawyers to represent the clients competently and efficiently, it may make sense to require a license or certification for AI to participate in the practice of law, much like requiring a license or certification for human lawyers and paralegals. For example, for a generative AI solution to be allowed in the legal field, certification may require that the inputs and outputs of the AI solution are kept confidential and not shared. Similarly, certification may require additional cross-checking for AI-aided case law citations to address ‘hallucinations.’ 

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National Law Review, Volumess XIII, Number 334