Board reviews guidelines for the use of generative AI in the practice of law

Board reviews guidelines for the use of generative AI in the practice of law

Meeting for the last time in 2023 on Friday, the Board of Governors approved a raft of proposed rule revisions that included some of the nation’s first guidelines for the use of generative AI in the practice of law.

During a marathon session in a Destin conference room, the board voted unanimously to recommend a handful of proposals by the Special Committee on AI Tools & Resources, a panel President Scott Westheimer formed just this summer.

“The special AI committee has been extremely busy since we first met in August,” said Co-Chair Gordon Glover.

Proposed amendments to Rules 4-1.1 (Competence, 4-1.6 (Confidentiality), 4-5.1 ((Responsibilities of Partners, Managers, and Supervisory Lawyers) and 4-5.3 (Responsibilities Regarding Nonlawyer Assistants) remind lawyers that use of generative artificial intelligence impact their ethical obligations in numerous areas.

The proposals will be forwarded to the Supreme Court for final consideration.

Shortly after the vote, Glover detailed for the board a handful of AI-related projects the committee is developing, including researching and vetting possible certification and disclosure requirements for lawyers and self-represented litigants. The committee considered Ethics Opinion 79-7, which provides, in part, that any pleadings or papers prepared by an attorney for a pro se litigant and filed with the court must indicate, “Prepared with the Assistance of Counsel.”

“Specifically, the Committee has considered whether existing rules adequately address what could amount to lawyer misconduct in the use of generative AI,” Glover said.

Glover also noted that the special committee recently submitted a request for a generative AI-related ethics opinion.

Proposed Advisory Opinion 24-1 touches on confidentiality, lawyer oversight, legal fees and costs, and lawyer advertising, Glover said. The Board Review Committee on Professional Ethics posted a notice last month for public comments regarding the proposed advisory opinion that will be received at the next board meeting on January 19 in Tallahassee. The notice and instructions for submitting comments may be found here.

The AI committee has also asked the Rules of General Practice and Judicial Administration Committee to review Rule 2.515 (Signatures and Certificates of Attorneys and Parties) to consider whether the current requirements are sufficient, both generally and “in light of the challenges that may be faced if litigants use generative AI,” Glover said.

Glover said the committee has continued working with Bar staff to develop educational resources for Florida lawyers “on the risks and benefits of generative AI, as well as privacy, and security issues surrounding its use.”

A veteran board member and Ocala attorney, Glover referred to a recent ABA Journal article that lists Fisher Philips as the nation’s first major law firm to deploy CaseText’s AI legal assistant, “CoCounsel.”

Asked to write a research memo detailing the language required for an employment application under Massachusetts law, CoCounsel produced a 20-page document with bulleted requirements and citations to 28 cases with background on anti-discrimination statutes, a ban on the use of lie-detector tests, and a description of the state’s pay equity law.

“It took five minutes to run,” Glover said.

Glover noted that the Miami-Dade Public Defender has successfully used CoCounsel to conduct research, develop creative legal arguments, and review, analyze and summarize documents.

Later in the day, Technology Committee Chair Alice Sum said her committee is developing a five-hour, AI-themed “Presidential Showcase” for the Annual Convention in June.

“We’re going to be bringing in the foremost experts across the country on AI and present instruction to educate our members,” Sum said.

The Technology Committee has also appointed a subcommittee to develop an AI and tech-related resource webpage that would “marshal all of the work that we are doing, whether it’s CLE videos, articles, etcetera.”

“The idea, of course, is to find a way to provide all of these incredible resources to help educate our members on a cutting-edge area of the law,” Sum said.

In other business, the board voted, after a lengthy discussion, to approve a Real Property, Probate, and Trust Law Section proposal to scrub so-called “Z words” — zeal, zealous, and zealously — from the Bar rule book. The proposed amendments would remove references to “Z” words from the Preamble to Chapter 4 and the comment to Rule 4-1.3 — and add a comment that would offer an explanation and historical perspective.

Under the proposal, a sentence in the Preamble, “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system,” would instead state, “As an advocate, a lawyer asserts the client’s position with commitment and dedication to the interests of the client under the rules of the adversary system.”

Another sentence in the Preamble, “Zealous advocacy is not inconsistent with justice,” would instead state, “Commitment and dedication in advocacy are not inconsistent with justice.”

A sentence in the comment to Rule 4-1.3 (Diligence), “A lawyer must also act with commitment and dedication to the interests of the client and with zeal and advocacy on the client’s behalf,” would simply state, “A lawyer must also act with commitment and dedication to the interests of the client.”

The proposed new comment would appear in the Preamble under the subheading “Conduct.”

“All prior references to this chapter to a lawyer’s duty to act zealously, as a zealous advocate, or with zeal upon the client’s behalf have been removed. Zealous advocacy has been invoked in the legal profession as an excuse for unprofessional behavior,” the comment would state.

The comment would refer to a 2000 Supreme Court decision, The Florida Bar v. Buckle, in which the justices wrote, “we must never permit a cloak of purported zealous advocacy to conceal unethical behavior.”

During a July meeting in Sarasota, Tampa lawyer Larry Miccolis told the Rules Committee that the RPPTL’s Ethics and Professionalism Committee formed a subcommittee last year to study the issue.

“We looked at the term’s etymology, the history of the terms, caselaw, other states’ jurisdictional rules,” he said. “Z terms have a long history. But today, we found that there is more often a negative treatment associated with negative behaviors and labels.”

Miccolis was quick to credit the committee chair, Andy Sasso, with proposing the change.

But shortly before the vote, board member Karl Klein, a Miami lawyer, said he was concerned some lawyers would be tempted to temper their dedication to their client’s cause.

“What I worry about is the good attorneys, who do read the rules, and who would say, ‘Oh, I can’t represent my clients with zealous advocacy anymore,” Klein said.

Board member Michael Gelfand defended the proposal, saying too many lawyers use the reference to excuse their unprofessional behavior.

“When we go back to our districts, what’s the No. 1 issue our constituents complain about,” Gelfand said. “It is professionalism.”

The change is needed now more than ever, Gelfand said, when beginning lawyers are launching solo practices without the moderating influence of a mentor.

“We have seen lawyers in the courtroom who have justified their conduct because they have to be a zealot,” he said. “This is our way to start bringing back professionalism, which is why our constituents largely sent us here.”

The board approved the proposed revisions, 24-9. The Supreme Court will have the final say.

In other business, after a lengthy discussion, the board voted to withdraw Proposed Advisory Opinion 23-1.

The proposed opinion addressed whether a Florida lawyer may be a passive investor in an “alternative business structure” that provides legal services in another state but does not maintain any presence in Florida or provide Florida legal services.

Board member Amy Farrior noted that some former Florida Bar presidents submitted comments opposed to the proposed opinion.

“I feel like it’s a slippery slope, it’s the camel’s nose under the tent,” Farrior said “If you believe that non-lawyer ownership of a law firm is a bad thing, this is one step in the wrong direction.”