AI Summit_Sept. 13 2024

Fey: AI-Related Legal and Ethical Risks

situation where this rule could be implicated would be if a lawyer utilized an AI technology that, in its output, utilized a former client’s confidential information that had previously been input into the technology to the disadvantage of such former client. H. Responsibilities of a Partner or Supervisory Lawyer (ABA Model Rule 5.1) Eighth, under ABA Model Rule 5.1 : “A partner in a law firm [or supervisory lawyer] . . . shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” Supervisory lawyer s must make reasonable efforts to “establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct.” See ABA Model Rule 5.1, comment 1. A lawyer is responsible for “another lawyer's violation if: (1) the lawyer orders or…ratifies the conduct involved; or (2) the lawyer is a partner… [or] has direct supervisory authority over the other lawyer and knows of the conduct at a time when its consequences ca n be avoided or mitigated but fails to take reasonable remedial action.” See ABA Model Rule 5.1. Partners and supervisory attorneys should confirm that their firms have appropriate measures in place to help ensure ethical compliance in connection with the firms’ AI technology usage, including the selection and implementation of appropriate AI technologies, and the implementation of appropriate AI policies, training, and oversight. Supervising lawyers also should take reasonable actions to oversee and remediate any potential harm caused by AI usage by a lawyer they are supervising. I. Responsibilities Regarding Nonlawyer Assistance (ABA Model Rule 5.3) Ninth, lawyers directly supervising nonlawyers must ensure nonlawyers are using AI technologies in accordance with ABA Model Rules. Per ABA Model Rule 5.3 : “A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.” Nonlawyers include not only parties employed by lawyers at the firm, but also third parties outside of the firm who are hired to assist in rendering legal services to the client. See ABA Model Rule 5.3, comment 3. It is worth noting that, in 2012, the ABA changed the title of ABA Model Rule 5.3 from “Responsibilities Regarding Nonlawyer Assistants” to “Responsibilities Regarding Nonlawyer Assistance ,” presumptively , so the rule could cover non-humans. Thus, lawyers are not only responsible for supervising their law clerks, paralegals, and other employees, but also their independent contractors using AI technologies and their AI vendors/technologies. J. Unauthorized Practice of Law (ABA Model Rule 5.5) Tenth, ABA Model Rule 5.5 states that “a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so.” Comment 2 to ABA Model Rule 5.5 reiterates that “a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person’s jurisdiction.”

9

AI Roundtable Page 108