SEPTEMBER 2024 | 83 THE OKLAHOMA BAR JOURNAL Obviously, when informed consent is required, the lawyer must disclose the use of GAI. When disclosure is not required under Rule 1.4, a lawyer may wish to make such disclosure anyway. The most logical and effective place to make that disclosure would be in the lawyer’s employment contract. MERITORIOUS CLAIMS AND CONTENTIONS AND CANDOR TOWARD THE TRIBUNAL: RULES 3.1, 3.3 AND 8.4(C) Rule 3.1 states, in part, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” Rule 3.3 prohibits making any false statement of fact or law to a tribunal. Rule 8.4(c) prohibits lawyers from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.” When a GAI tool “hallucinates” or cites to nonexistent cases or otherwise provides inaccurate information, the use of that information in pleadings or arguments may violate any of the above rules. ABA 512 notes: Some courts have responded by requiring lawyers to disclose their use of GAI. As a matter of competence, as previously discussed, lawyers should review for accuracy all GAI outputs. In judicial proceedings, duties to the tribunal likewise require lawyers, before submitting materials to a court, to review these outputs, including analysis and citations to authority, and to correct errors, including misstatements of law and fact, a failure to include controlling legal authority, and misleading arguments. SUPERVISORY RESPONSIBILITIES: RULES 5.1 AND 5.3 ABA 512 makes clear that lawyers with managerial duties must establish clear policies regarding the permissible use of GAI and supervise both lawyers and nonlawyers to ensure compliance with these policies. Supervisors must also make sure that both lawyers and nonlawyers are adequately trained in the ethical and practical uses of GAI. Training should also include the application of implicated rules. Supervisory responsibility extends to contractors or other providers outside of the law firm. FEES: RULE 1.5 ABA 512 also addresses the effects of using GAI tools or services in the representation of a client. A lawyer must explain the reasoning behind and the basis for charging the client for the use of GAI tools or services. Lawyers may also wish to take into consideration how they bill when using those services. Flat or contingent fees may be more suitable for the lawyer and more affordable for the client. CONCLUSION Technology has transformed the practice of law during my career. Technology will transform the practice of law well into the future. As Rule 1.1 reminds us, lawyers have a duty to understand the benefits and risks associated with technology. I encourage all practitioners to read ABA 512 as an introduction to the ethical issues associated with GAI. Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at richards@okbar.org or 405-416-7055. Ethics information is also online at www.okbar.org/ec.
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