FLORIDA BAR ETHICS OPINION

OPINION 24-1
January 19, 2024

Advisory ethics opinions are not binding.

Lawyers may use generative artificial intelligence (“AI”) in the practice of law but must
protect the confidentiality of client information, provide accurate and competent services, avoid
improper billing practices, and comply with applicable restrictions on lawyer advertising.
Lawyers must ensure that the confidentiality of client information is protected when using
generative AI by researching the program’s policies on data retention, data sharing, and self-
learning. Lawyers remain responsible for their work product and professional judgment and must
develop policies and practices to verify that the use of generative AI is consistent with the
lawyer’s ethical obligations. Use of generative AI does not permit a lawyer to engage in
improper billing practices such as double-billing. Generative AI chatbots that communicate with
clients or third parties must comply with restrictions on lawyer advertising and must include a
disclaimer indicating that the chatbot is an AI program and not a lawyer or employee of the law
firm. Lawyers should be mindful of the duty to maintain technological competence and educate
themselves regarding the risks and benefits of new technology.

RPC: 4-1.1; 4-1.1 Comment; 4-1.5(a); 4-1.5(e); 4-1.5(f)(2); 4-1.5(h); 4-1.6; 4-1.6
Comment; 4-1.6(c)(1); 4-1.6(e); 4-1.18 Comment; 4-3.1; 4-3.3; 4-4.1; 4-4.4(b);
Subchapter 4-7; 4-7.13; 4-7.13(b)(3); 4-7.13(b)(5); 4-5.3(a)
OPINIONS: 76-33 & 76-38, Consolidated; 88-6; 06-2; 07-2; 10-2; 12-3; ABA Comm. on
Ethics and Prof’l Responsibility, Formal Op. 498 (2021); ABA Comm. on Ethics
and Prof’l Responsibility, Formal Op. 93-379 (1993); Iowa Ethics Opinion 11-01;
New York State Bar Ethics Opinion 842
CASES: Mata v. Avianca, 22-cv-1461, 2023 WL 4114965, at 17 (S.D.N.Y. June 22, 2023);
Bartholomew v. Bartholomew, 611 So. 2d 85, 86 (Fla. 2d DCA 1992); The
Florida Bar v. Carlon, 820 So. 2d 891, 899 (Fla. 2002); Att’y Grievance Comm’n
of Maryland v. Manger, 913 A.2d 1 (Md. 2006)

The Florida Bar Board of Governors has directed the Board Review Committee on
Professional Ethics to issue an opinion regarding lawyers’ use of generative artificial intelligence
(“AI”). The release of ChatGPT-3 in November 2022 prompted wide-ranging debates regarding
lawyers’ use of generative AI in the practice of law. While it is impossible to determine the
impact generative AI will have on the legal profession, this opinion is intended to provide
guidance to Florida Bar members regarding some of the ethical implications of these new
programs.

Generative AI are “deep-learning models” that compile data “to generate statistically
probable outputs when prompted.” IBM, What is generative AI?, (April 20, 2023),
https://research.ibm.com/blog/what-is-generative-AI (last visited 11/09/2023). Generative AI can
create original images, analyze documents, and draft briefs based on written prompts. Often,
these programs rely on large language models. The datasets utilized by generative AI large
language models can include billions of parameters making it virtually impossible to determine
how a program came to a specific result. Tsedel Neeley, 8 Questions About Using AI
Responsibly, Answered, Harv. Bus. Rev. (May 9, 2023).

While generative AI may have the potential to dramatically improve the efficiency of a
lawyer’s practice, it can also pose a variety of ethical concerns. Among other pitfalls, lawyers are
quickly learning that generative AI can “hallucinate” or create “inaccurate answers that sound
convincing.” Matt Reynolds, vLex releases new generative AI legal assistant, A.B.A. J. (Oct. 17,
2023), https://www.abajournal.com/web/article/vlex-releases-new-generative-ai-legal-assistant
(last visited 11/09/2023). In one particular incident, a federal judge sanctioned two unwary
lawyers and their law firm following their use of false citations created by generative AI. Mata v.
Avianca, 22-cv-1461, 2023 WL 4114965, at 17 (S.D.N.Y. June 22, 2023).

Even so, the judge’s opinion explicitly acknowledges that “[t]echnological advances are
commonplace and there is nothing inherently improper about using a reliable artificial
intelligence tool for assistance.” Id. at 1.

Due to these concerns, lawyers using generative AI must take reasonable precautions to
protect the confidentiality of client information, develop policies for the reasonable oversight of
generative AI use, ensure fees and costs are reasonable, and comply with applicable ethics and
advertising regulations.

Confidentiality

When using generative AI, a lawyer must protect the confidentiality of the client’s
information as required by Rule 4-1.6 of the Rules Regulating The Florida Bar. The ethical duty
of confidentiality is broad in its scope and applies to all information learned during a client’s
representation, regardless of its source. Rule 4-1.6, Comment. Absent the client’s informed
consent or an exception permitting disclosure, a lawyer may not reveal the information. In
practice, the most common exception is found in subdivision (c)(1), which permits disclosure to
the extent reasonably necessary to “serve the client’s interest unless it is information the client
specifically requires not to be disclosed[.]” Rule 4-1.6(c)(1). Nonetheless, it is recommended that
a lawyer obtain the affected client’s informed consent prior to utilizing a third-party generative
AI program if the utilization would involve the disclosure of any confidential information.

Rule 4-1.6(e) also requires a lawyer to “make reasonable efforts to prevent the
inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the
client’s representation.” Further, a lawyer’s duty of competence requires “an understanding of
the benefits and risks associated with the use of technology[.]” Rule 4-1.1, Comment.

When using a third-party generative AI program, lawyers must sufficiently understand

the technology to satisfy their ethical obligations. For generative AI, this specifically includes
knowledge of whether the program is “self-learning.” A generative AI that is “self-learning”
continues to develop its responses as it receives additional inputs and adds those inputs to its
existing parameters. Neeley, supra n. 2. Use of a “self-learning” generative AI raises the
possibility that a client’s information may be stored within the program and revealed in response
to future inquiries by third parties.
 Existing ethics opinions relating to cloud computing, electronic storage disposal, remote
paralegal services, and metadata have addressed the duties of confidentiality and competence to
prior technological innovations and are particularly instructive. In its discussion of cloud
computing resources, Florida Ethics Opinion 12-3 cites to New York State Bar Ethics Opinion
842 and Iowa Ethics Opinion 11-01 to conclude that a lawyer should:

• Ensure that the provider has an obligation to preserve the confidentiality and security of
information, that the obligation is enforceable, and that the provider will notify the
lawyer in the event of a breach or service of process requiring the production of client
information;
• Investigate the provider’s reputation, security measures, and policies, including any
limitations on the provider’s liability; and
• Determine whether the provider retains information submitted by the lawyer before and
after the discontinuation of services or asserts proprietary rights to the information.

While the opinions were developed to address cloud computing, these recommendations
are equally applicable to a lawyer’s use of third-party generative AI when dealing with
confidential information.

Florida Ethics Opinion 10-2 discusses the maintenance and disposition of electronic
devices that contain storage media and provides that a lawyer’s duties extend from the lawyer’s
initial receipt of the device through the device’s disposition, “including after it leaves the control
of the lawyer.” Opinion 10-2 goes on to reference a lawyer’s duty of supervision and to express
that this duty “extends not only to the lawyer’s own employees but over entities outside the
lawyer’s firm with whom the lawyer contracts[.]” Id.

Florida Ethics Opinion 07-2 notes that a lawyer should only allow an overseas paralegal
provider access to “information necessary to complete the work for the particular client” and
“should provide no access to information about other clients of the firm.” Additionally, while
“[t]he requirement for informed consent from a client should be generally commensurate with
the degree of risk involved[,]” including “whether a client would reasonably expect the lawyer or
law firm to personally handle the matter and whether the non-lawyers will have more than a
limited role in the provision of the services.” Id. Again, this guidance seems equally applicable to
a lawyer’s use of generative AI.

Finally, Florida Ethics Opinion 06-2 provides that a lawyer should take reasonable steps
to safeguard the confidentiality of electronic communications, including the metadata attached to
those communications, and that the recipient should not attempt to obtain metadata information
that they know or reasonably should know is not intended for the recipient. In the event that the
recipient inadvertently receives metadata information, the recipient must “promptly notify the
sender,” as is required by Rule 4-4.4(b). Similarly, a lawyer using generative AI should take
reasonable precautions to avoid the inadvertent disclosure of confidential information and should
not attempt to access information previously provided to the generative AI by other lawyers.

It should be noted that confidentiality concerns may be mitigated by use of an inhouse

generative AI rather than an outside generative AI where the data is hosted and stored by a third-
party. If the use of a generative AI program does not involve the disclosure of confidential
information to a third-party, a lawyer is not required to obtain a client’s informed consent
pursuant to Rule 4-1.6.

Oversight of Generative AI

While Rule 4-5.3(a) defines a nonlawyer assistant as a “a person,” many of the standards
applicable to nonlawyer assistants provide useful guidance for a lawyer’s use of generative AI.

First, just as a lawyer must make reasonable efforts to ensure that a law firm has policies
to reasonably assure that the conduct of a nonlawyer assistant is compatible with the lawyer’s
own professional obligations, a lawyer must do the same for generative AI. Lawyers who rely on
generative AI for research, drafting, communication, and client intake risk many of the same
perils as those who have relied on inexperienced or overconfident nonlawyer assistants.

Second, a lawyer must review the work product of a generative AI in situations similar to
those requiring review of the work of nonlawyer assistants such as paralegals. Lawyers are
ultimately responsible for the work product that they create regardless of whether that work
product was originally drafted or researched by a nonlawyer or generative AI.

Functionally, this means a lawyer must verify the accuracy and sufficiency of all research
performed by generative AI. The failure to do so can lead to violations of the lawyer’s duties of
competence (Rule 4-1.1), avoidance of frivolous claims and contentions (Rule 4-3.1), candor to
the tribunal (Rule 4-3.3), and truthfulness to others (Rule 4-4.1), in addition to sanctions that
may be imposed by a tribunal against the lawyer and the lawyer’s client.

Third, these duties apply to nonlawyers “both within and outside of the law firm.” ABA
Comm. on Ethics and Prof’l Responsibility, Formal Op. 498 (2021); see Fla. Ethics Op. 07-2.
The fact that a generative AI is managed and operated by a third-party does not obviate the need
to ensure that its actions are consistent with the lawyer’s own professional and ethical
obligations.

Further, a lawyer should carefully consider what functions may ethically be delegated to
generative AI. Existing ethics opinions have identified tasks that a lawyer may or may not
delegate to nonlawyer assistants and are instructive. First and foremost, a lawyer may not
delegate to generative AI any act that could constitute the practice of law such as the negotiation
of claims or any other function that requires a lawyer’s personal judgment and participation.

Florida Ethics Opinion 88-6 notes that, while nonlawyers may conduct the initial
interview with a prospective client, they must:

• Clearly identify their nonlawyer status to the prospective client;

• Limit questions to the purpose of obtaining factual information from the prospective
client; and

• Not offer any legal advice concerning the prospective client’s matter or the representation
agreement and refer any legal questions back to the lawyer.
 This guidance is especially useful as law firms increasingly utilize website chatbots for
client intake. While generative AI may make these interactions seem more personable, it presents
additional risks, including that a prospective client relationship or even a lawyer-client
relationship has been created without the lawyer’s knowledge.

The Comment to Rule 4-1.18 (Duties to Prospective Client) explains what constitutes a
consultation:

A person becomes a prospective client by consulting with a lawyer about the

possibility of forming a client-lawyer relationship with respect to a matter.
Whether communications, including written, oral, or electronic communications,
constitute a consultation depends on the circumstances. For example, a
consultation is likely to have occurred if a lawyer, either in person or through the
lawyer’s advertising in any medium, specifically requests or invites the
submission of information about a potential representation without clear and
reasonably understandable warnings and cautionary statements that limit the
lawyer’s obligations, and a person provides information in response. In contrast, a
consultation does not occur if a person provides information to a lawyer in
response to advertising that merely describes the lawyer’s education, experience,
areas of practice, and contact information, or provides legal information of
general interest. A person who communicates information unilaterally to a lawyer,
without any reasonable expectation that the lawyer is willing to discuss the
possibility of forming a client-lawyer relationship, is not a “prospective client”
within the meaning of subdivision (a).

Similarly, the existence of a lawyer-client relationship traditionally depends on the

subjective reasonable belief of the client regardless of the lawyer’s intent. Bartholomew v.
Bartholomew, 611 So. 2d 85, 86 (Fla. 2d DCA 1992).

For these reasons, a lawyer should be wary of utilizing an overly welcoming generative
AI chatbot that may provide legal advice, fail to immediately identify itself as a chatbot, or fail to
include clear and reasonably understandable disclaimers limiting the lawyer’s obligations.

Just as with nonlawyer staff, a lawyer should not instruct or encourage a client to rely
solely on the “work product” of generative AI, such as due diligence reports, without the
lawyer’s own personal review of that work product.

Legal Fees and Costs

Rule 4-1.5(a) prohibits lawyers from charging, collecting, or agreeing to fees or costs that
are illegal or clearly excessive while subdivision (b) provides a list of factors to consider when
determining whether a fee or cost is reasonable. A lawyer must communicate the basis for fees
and costs to a client and it is preferable that the lawyer do so in writing. Rule 4-1.5(e).
Contingent fees and fees that are nonrefundable in any part must be explained in writing. Rule 4-
1.5(e); Rule 4-1.5(f)(2).

Regarding costs, a lawyer may only ethically charge a client for the actual costs incurred
on the individual client’s behalf and must not duplicate charges that are already accounted for in
the lawyer’s overhead. See, The Florida Bar v. Carlon, 820 So. 2d 891, 899 (Fla. 2002) (lawyer
sanctioned for violations including a $500.00 flat administrative charge to each client’s file);
ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 93-379 (1993) (lawyer should only
charge clients for costs that reasonably reflect the lawyer’s actual costs); Rule 4-1.5(h) (lawyers
accepting payment via a credit plan may only charge the actual cost imposed on the transaction
by the credit plan).

Regarding fees, a lawyer may not ethically engage in any billing practices that duplicate
charges or that falsely inflate the lawyer’s billable hours. Though generative AI programs may
make a lawyer’s work more efficient, this increase in efficiency must not result in falsely inflated
claims of time. In the alternative, lawyers may want to consider adopting contingent fee
arrangements or flat billing rates for specific services so that the benefits of increased efficiency
accrue to the lawyer and client alike.

While a lawyer may separately itemize activities like paralegal research performed by
nonlawyer personnel, the lawyer should not do so if those charges are already accounted for in
the lawyer’s overhead. Fla. Ethics Op. 76-33 & 76-38, Consolidated. In the alternative, the
lawyer may need to consider crediting the nonlawyer time against the lawyer’s own fees. Id.
Florida Ethics Opinion 07-2 discusses the outsourcing of paralegal services in contingent fee
matters and explains:

The law firm may charge a client the actual cost of the overseas provider [of
paralegal services], unless the charge would normally be covered as overhead.
However, in a contingent fee case, it would be improper to charge separately for
work that is usually otherwise accomplished by a client’s own attorney and
incorporated into the standard fee paid to the attorney, even if that cost is paid to a
third-party provider.

Additionally, a lawyer should have sufficient general knowledge to be capable of

providing competent representation. See, e.g., Att’y Grievance Comm’n of Maryland v. Manger,
913 A.2d 1 (Md. 2006). “While it may be appropriate to charge a client for case-specific research
or familiarization with a unique issue involved in a case, general education or background
research should not be charged to the client.” Id. at 5.

In the context of generative AI, these standards require a lawyer to inform a client,
preferably in writing, of the lawyer’s intent to charge a client the actual cost of using generative
AI. In all instances, the lawyer must ensure that the charges are reasonable and are not
duplicative. If a lawyer is unable to determine the actual cost associated with a particular client’s
matter, the lawyer may not ethically prorate the periodic charges of the generative AI and instead
should account for those charges as overhead. Finally, while a lawyer may charge a client for the
reasonable time spent for case-specific research and drafting when using generative AI, the
lawyer should be careful not to charge for the time spent developing minimal competence in the
use of generative AI.
Lawyer Advertising

The advertising rules in Subchapter 4-7 of the Rules Regulating The Florida Bar include
prohibitions on misleading content and unduly manipulative or intrusive advertisements.

Rule 4-7.13 prohibits a lawyer from engaging in advertising that is deceptive or

inherently misleading. More specifically, subdivision (b) includes prohibitions on:

(3) comparisons of lawyers or statements, words, or phrases that characterize a

lawyer’s or law firm’s skills, experience, reputation, or record, unless the
characterization is objectively verifiable; [and]

* * *

(5) [use of] a voice or image that creates the erroneous impression that the person
speaking or shown is the advertising lawyer or a lawyer or employee of the
advertising firm unless the advertisement contains a clear and conspicuous
disclaimer that the person is not an employee or member of the law firm[.]

As noted above, a lawyer should be careful when using generative AI chatbot for
advertising and intake purposes as the lawyer will be ultimately responsible in the event the
chatbot provides misleading information to prospective clients or communicates in a manner that
is inappropriately intrusive or coercive. To avoid confusion or deception, a lawyer must inform
prospective clients that they are communicating with an AI program and not with a lawyer or law
firm employee. Additionally, while many visitors to a lawyer’s website voluntarily seek
information regarding the lawyer’s services, a lawyer should consider including screening
questions that limit the chatbot’s communications if a person is already represented by another
lawyer.

Lawyers may advertise their use of generative AI but cannot claim their generative AI is
superior to those used by other lawyers or law firms unless the lawyer’s claims are objectively
verifiable. Whether a particular claim is capable of objective verification is a factual question
that must be made on a case-by-case basis.

Conclusion

In sum, a lawyer may ethically utilize generative AI technologies but only to the extent
that the lawyer can reasonably guarantee compliance with the lawyer’s ethical obligations. These
obligations include the duties of confidentiality, avoidance of frivolous claims and contentions,
candor to the tribunal, truthfulness in statements to others, avoidance of clearly excessive fees
and costs, and compliance with restrictions on advertising for legal services. Lawyers should be
cognizant that generative AI is still in its infancy and that these ethical concerns should not be
treated as an exhaustive list. Rather, lawyers should continue to develop competency in their use
of new technologies and the risks and benefits inherent in those technologies.