The New Jersey Supreme Court Committee on Artificial Intelligence has recently released preliminary guidelines regarding the ethical use of artificial intelligence (AI) by attorneys. With an understanding of AI’s significant capabilities as well as its potential risks, the guidelines aim to strike a balance between harnessing the advantages of innovation and mitigating the potential risks of misuse.
These guidelines, which came into effect immediately, specifically address the use of AI to assist lawyers in their legal practices. While not introducing new obligations, they emphasize compliance with the existing Rules of Professional Conduct (RPCs) in New Jersey. The committee responsible for these guidelines consists of private and public lawyers, judges, judiciary leaders, technologists, and experts from academia and media.
Here are the key takeaways from the preliminary guidelines provided by the committee:
1. Ethical Concerns: The guidelines recognize the ethical concerns associated with AI and urge lawyers to use the technology mindfully. The guidelines emphasize that AI should not alter lawyers’ fundamental duties outlined in the RPCs, including diligence, confidentiality, honesty, and client advocacy.
2. Accuracy and Truthfulness: Lawyers using AI have a duty to verify the accuracy of information generated by AI, as the technology can produce false information. Failure to do so may result in violations of the RPCs.
3. Honesty, Candor, and Communication: Lawyers remain responsible for the validity of legal submissions generated using AI. They must not submit false, fake, or misleading content and are prohibited from manipulating or creating evidence through AI. Lawyers must uphold candor to the tribunal and inform clients about their use of AI if necessary.
4. Confidentiality: Lawyers must ensure the security of AI systems to prevent unauthorized disclosure of confidential client information. They are advised to verify the security of an AI system before inputting non-public client information to comply with the RPCs.
5. Prevention of Misconduct: Lawyers should avoid misconduct such as dishonesty, fraud, deceit, misrepresentation, and discrimination while utilizing AI. Accuracy in communication with clients and the court is crucial in fulfilling these duties.
6. Oversight: Under the RPCs, law firms and lawyers have the responsibility to oversee the work performed by others, including AI systems. Lawyers must ensure the ethical use of AI systems by themselves and others.
7. Use of AI Disclosure: The guidelines do not expressly require lawyers to disclose the use of AI in legal pleadings, arguments, or evidence. However, lawyers may need to provide such disclosure depending on the specific facts and circumstances of each case. Clients should be informed about the use of AI if it impacts their ability to make informed decisions about representation.
The committee’s preliminary guidelines provide a starting point for lawyers to comply with the existing RPCs while utilizing AI in their legal practices. Attorneys are encouraged to seek guidance from the Attorney Ethics Hotline or the court’s Court Use of AI mailbox. Future detailed guidelines may be developed as more becomes known about the capabilities, limits, and risks of AI.
