Not Ready For Prime Time: The Current State Of Legal Ethics And AI | Techdirt

Sign In

Register

Preferences

Techdirt

TechDirt

GreenHouse

Free Speech

Error 402

Ctrl-Alt-Speech

Deals

Jobs

Support Techdirt

Zuckerberg Is Right About Open, Decentralized AI. He’s Also The Last Person You Should Trust To Deliver It

Not Ready For Prime Time: The Current State Of Legal Ethics And AI

Not Ready For Prime Time: The Current State Of Legal Ethics And AI

(Mis)Uses of Technology

from the there-be-dragons dept

Wed, Aug 12th 2026 03:11pm -

Cathy Gellis

I’ve been presenting at UC Law San Francisco Lexlab Law and AI certificate program its past several sessions, as well as some law school classes, on whether lawyers’ use of AI complies with the rules of professional conduct governing how lawyers must comport themselves or risk losing their licenses. The legal industry is keen to reap many of the benefits AI promises, such as streamlining some of the more arduous parts of the job and potentially making legal representation more affordable and/or profitable. And tech vendors are keen to profit from selling their AI systems to this market.

But neither constituency can benefit unless the way AI is used is consistent with those ethical rules. They exist for a reason—to make sure clients’ interests are prioritized and protected—and nothing about AI obviates their need or applicability. As lawyers start to roll these tools into their practice they need to make sure it’s not in a way that violates those rules, and for those vendors eager to sell their tools to the legal profession, they are going to need to make sure they are designed in a way where their use does not.

And we are not yet at a place where compliance can be presumed when AI tools are used. AI use by lawyers remains highly problematic for at least two big reasons: the current unreliability of AI outputs, and the tendency for AI to consume, store, and reuse data it is exposed to, even if that data needs to remain private. With regard to the former issue, the reliability concerns go beyond just the problem of hallucinated citations appearing in legal briefs; it is still the case that clients hire lawyers for their judgment, which so far AI still cannot replace. Maybe someday if AI has developed into something truly autonomous we could simply demand that it take the bar and be accountable to clients like human lawyers currently are, but since that day is not yet here it is critically important that lawyers not abdicate their own judgment in favor of whatever an AI tool might produce. Clients are depending on them, their lawyers, and they remain fully accountable to serve them as the profession requires.

And with regard to the data protection issue, it remains true for any tool lawyers use, AI-based or not: lawyers need to make sure that the tool use does not compromise client information, which they have a duty to protect because really bad things can happen to the client when privacy is not preserved. But AI tools in particular are notoriously greedy about collecting, retaining, and reusing whatever information they can access, unless they are specifically designed not to do so. It is thus critically important for lawyers to make sure that whatever tool they use—including and especially an AI tool—does not have the ability to mishandle or misappropriate client data to which it is exposed.

Each of these major issues then reverberates in a number of the specific ethical rules governing lawyers that they need to abide by. What follows is a closer examination of some of the ways they do.

There are a few things to note at the outset. First, there are more rules governing lawyers than what have been included in the analysis here, such as those relating to the duty to uphold the reputation of the profession, or those relating to advertising, which AI can also implicate. But the ones included are some of the major ones and examples of how AI use can rule afoul of them.

It’s also important to note that the rules can work together, and sometimes are in tension. The duty of zealous advocacy, for instance, can sometimes be at odds with the duty of candor. But AI does not itself resolve those ethical questions. Instead what is important to realize is that an AI use might implicate more than one rule.

As for the rules themselves, although they are rooted in some longstanding principles, what governs lawyers today are a set of model rules the American Bar Association promulgated in 1983 and pretty much every state has since adopted in some form. Because they can vary somewhat in how they were adopted by each state, lawyers need to consult the specific language their state has used to know how the rules apply to them, along with any other guidance and commentary their state’s lawyer regulators have produced. In fact, many states are also busy updating this guidance in order to specifically apply it to lawyer AI use (as is the ABA). But the basic gist of each...