Legal Experts Critique ABA's New AI Ethics Opinion for Gaps
Legal experts warn that the ABA’s new AI ethics guidance lacks clear protocols for responsible use or nonuse of AI tools in legal practice.
Why it matters: Unclear guidance on using AI may expose lawyers to malpractice claims for errors or to disputes over ‘unreasonable’ fees if they underuse beneficial technology. Legal professionals face growing risk if ethical boundaries for AI aren’t sharply defined.
- ABA issued Formal Opinion 512 on July 29, 2024, addressing ethical AI use in law.
- Opinion directs lawyers to verify AI-generated content and consult qualified experts as needed.
- No specific protocols or standards are recommended for AI tool adoption or oversight.
- Michigan State Bar warns that failing to use cost-saving AI could lead to claims of excessive legal fees.
The American Bar Association’s recent Formal Opinion 512 aims to guide lawyers on ethical use of artificial intelligence, but leading practitioners and analysts say the guidance may fall short where it matters most.
- The July opinion instructs lawyers to independently verify results produced by "generative AI"—software that creates text, briefs, or citations—but offers little detail on specific vetting practices beyond general vigilance.
- The opinion emphasizes that lawyers must understand AI tools' capabilities or seek help from appropriate experts, highlighting professional responsibility to mitigate technology-driven risks.
- This echoes real-world fallout: in 2023, two New York attorneys were sanctioned for submitting court filings with fictitious citations generated by ChatGPT—a cautionary tale on the dangers of taking such software at face value, as discussed in an American Bar Association report.
- Yet, critics note the ABA’s opinion stops short of offering actionable steps for identifying AI risks or determining when use is required, potentially placing undue risk on individual lawyers to interpret their obligations.
Meanwhile, the Michigan State Bar flagged a related malpractice exposure: not adopting technology that meaningfully lowers costs—such as AI—could result in a lawyer’s fees being deemed unreasonable. This places practitioners in a bind: avoid novel tech and risk a fee dispute, or experiment with unclear protocols and risk error or sanctions.
In a recent judicial opinion, one federal judge cautioned, "Any lawyer unaware that using generative AI platforms to do legal research is playing with fire is living in a cloud." The statement underlines the reality that both misuse and failure to adapt carry tangible legal risk.
By the numbers:
- 2 — Number of New York lawyers sanctioned in 2023 for submitting AI-generated fictitious citations
- July 29, 2024 — Date ABA issued Formal Opinion 512
Yes, but: Mississippi Bar is developing bar exam and CLE policies for AI, but comprehensive national standards remain lacking.