Most authorities, opinions, and articles about legal ethics aspects of a lawyer’s use or potential use of artificial intelligence (AI)—especially of generative AI (GAI), which is AI that creates content—have focused largely on the risks of AI use and the lawyer’s duties with respect to technological competence and other ethical principles relevant to avoiding or managing those risks.
However, a newly emerging aspect is whether or when a lawyer might be ethically required to use, or to propose to a client the use of, AI, including GAI. On July 29, 2024, the American Bar Association’s (ABA’s) Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion 512, on “Generative Artificial Intelligence Tools.” The opinion mostly consists of a useful compendium of ethics principles that apply when a lawyer uses or considers using GAI. Yet, the opinion also states in part:
Emerging technologies may provide an output that is of distinctively higher quality than current GAI tools produce, or may enable lawyers to perform work markedly faster and more economically, eventually becoming ubiquitous in legal practice and establishing conventional expectations regarding lawyers’ duty of competence. As GAI tools continue to develop and become more widely available, it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients.
Formal Opinion 512 at 4–5 (footnotes omitted and emphasis added). See also, e.g., “Segment 3: The Ethics Evolution: Why Lawyers Must Embrace AI ” of “Is It Unethical for Lawyers Not to Use AI?,” episode 22 of the podcast series “2030 Vision: AI and the Future of Law” (posted April 30, 2025). Also, B. Syroka, “You Just Can’t Beat the Machine: A Lawyer’s Duty to Adapt in the Age of Artificial Intelligence,” 56 U. Toledo L. Rev. 315 (Spring 2025).
Many ethical principles may apply to whether or when a lawyer might be ethically required to use, or to propose to a client the use of, GAI. There can be tension between those principles. Two of the biggest potential drivers for use of AI, in some instances, might be the lawyer’s general duty of competence (see, e.g., ABA Model Rule of Professional Conduct (MRPC) 1.1: “Competence” and its Comment [8]) and the lawyer’s general duty not to charge or collect an unreasonable fee or unreasonable expenses (see, e.g., ABA MRPC 1.5: “Fees”). Formal Opinion 512 as quoted above references the duty of competence, but it also references MRPC 1.5, stating: “Model Rule 1.5’s prohibition on unreasonable fees, as well as market forces, may influence lawyers to use new technology in favor of slower or less efficient methods.” Formal Opinion 512 at 5, fn. 23.
Yet, the lawyer generally also has significant discretion on the means used to perform an engagement for a client, subject to the requirement to reasonably consult with the client regarding those means (see, e.g., ABA MRPC 1.2: “Client Lawyer Relationship,” subsection (a) and Comments [1-3]; ABA MRPC 1.4: “Communications,” subsections (a)(1), (a)(2), and (b) and Comments [3] and [5]).
Where GAI might be headed in legal practice, and which uses might transition from extraordinary to common or even expected, is almost impossible to predict. When email and cell phones first were used by lawyers, the focus of legal ethics discussions also largely was on risks and risk avoidance or management. In May 2025, in an Arizona criminal case, the judge allowed the prosecution, at the sentencing stage, to present an AI version of the deceased victim to present a victim statement. That case is on appeal. See “Defense Attorney Appeals After AI Video Used in Court Sentencing.”