State Bar of California proposes first AI-specific changes to ethics rules
The State Bar of California is proposing for the first time to change California’s Rules of Professional Conduct to address the use of artificial intelligence. (Image from Shutterstock)
The State Bar of California is proposing for the first time to change California’s Rules of Professional Conduct to address the use of artificial intelligence.
The six proposed amendments concern the rules on competence, communication with clients, confidentiality, candor toward tribunals, and supervision of lawyers and staff, according to coverage from LawSites.
The State Bar of California’s Standing Committee on Professional Responsibility and Conduct introduced the changes in March at the behest of the California Supreme Court.
“While the current rules already provide guidance and dictate how to use emerging technologies, including artificial intelligence (AI), due to the increasing proliferation of AI, as well as continued examples of fake or ‘hallucinated’ content, including outdated, incomplete or nonexistent legal authorities appearing in documents filed with the court, COPRAC proposed clarifying amendments to the Rules of Professional Conduct,” the State Bar of California said when seeking public input on the proposed amendments.
Two proposed amendments address Rule 1.1 on competence. The first adds AI as an example of relevant technology in an existing comment. The second incorporates a new comment to explicitly state that when using AI or other technology, “a lawyer must independently review, verify and exercise professional judgment regarding any output generated by the technology that is used in connection with representing a client.”
Another proposed amendment addresses Rule 1.4 on communication with clients. It adds a new comment stating that when a lawyer uses AI or other technology that “presents a significant risk or materially affects the scope, cost, manner or decision-making process of representation,” the lawyer must provide to a client “sufficient information regarding the use of technology to permit the client to make informed decisions regarding the representation.” The comment also notes that this duty exists through the life of the representation.
Proposed amendments to Rule 1.6 on confidential information of a client expands the definition of “reveal” to include AI use and to Rule 3.3 on candor toward the tribunal adds a new comment to address problems with AI hallucinations. According to the comment, a lawyer’s duty “includes the obligation to verify the accuracy and existence of cited authorities, including ensuring no cited authority is fabricated, misstated or taken out of context, before submission to a tribunal, including any cited authorities generated or assisted by artificial intelligence or other technological tools.”
A proposed amendment to Rule 5.1 on responsibilities of managerial and supervisory lawyers clarifies that lawyers in a managerial role should establish internal policies and procedures that govern the use of AI. A proposed amendment to Rule 5.3 on responsibilities regarding nonlawyer assistants also clarifies that a lawyer must give appropriate instruction and supervision to staff when using AI and other technology to provide legal services.
The period for public comment on the proposed amendments closed Tuesday. According to LawSites, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct could modify these proposals after reviewing public comments.
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