The use of ChatGPT for lawyers holds both powerful promise and complex ethical challenges. While this AI chatbot can streamline many aspects of legal work - from contract drafting to basic research and client communications - its improper use or careless use of its output can lead to serious violations of professional conduct. As artificial intelligence becomes more common in the legal industry, understanding how to use AI responsibly is essential to maintaining compliance and client trust.

The Future of Lawyers is AI-Powered

ChatGPT and other AI chatbots have the potential to provide a myriad of benefits for lawyers and law firms in general. Utilizing ChatGPT and other generative AI tools can help with legal tasks such as drafting legal documents, legal templates, preparing case outlines, automating document review / contract review, and even generating effective ChatGPT prompts for discovery or analysis.

Though it has certainly received the most media attention, ChatGPT is just the beginning in both a legal context and a natural language context overall. In the years ahead, lawyers will be effectively leveraging AI's capabilities, enabling them to offload tedious work and focus more energy on strategic, high-value legal services. By using AI models wisely, attorneys can improve service quality while increasing internal efficiency.

Using ChatGPT Has Ethical Implications

Like all new technologies available to attorneys, ChatGPT has presented novel ethical issues for the practice of law. Unfortunately, ethical guidance is slim. The American Bar Association's Model Rules of Professional Conduct currently lack guidelines and/or rules pertaining to the use of ChatGPT, or other generative AI tools, by legal professionals. Nevertheless, the ABA has published articles and other content addressing the use of ChatGPT for lawyers, and other generative AI tools.

For example, the ABA published an article in 2020, which stated that "AI technologies will create unique challenges for legal practitioners beyond those presented by collecting data for cloud computing while ensuring lawyer-client confidentiality and privilege." The article went on to state that the "Model Rules of Professional Conduct are clear in requiring lawyers to ensure these evolving tools do not endanger client confidentiality and privilege." Attorneys must therefore be proactive in managing how they ask ChatGPT to complete legal tasks.

Key points: Here are three existing ethical rules that apply to the use of ChatGPT for lawyers:

• Duty of Competence - Attorneys must provide competent legal services and remain up to date with relevant technology. This includes verifying that ChatGPT citations to case law and statutes are authentic and not fabricated - a known risk with some LLMs.

• Duty of Confidentiality - This ethical rule requires an attorney to &quotmake reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.&quot The use of chatbots like ChatGPT can compromise client confidentiality. AI tools such as ChatGPT or Bing Chat expressly state that information inputted into their Large Language Models (LLM) are reviewed and not private. Entering sensitive client data into a public-facing AI assistant may violate an attorney's ethical duty to protect confidential information.

• Supervision of Nonlawyers (Including AI Tools) - According to this ethical rule, attorneys are obligated to exercise a level of supervision over non-attorneys who assist them by completing certain legal tasks. Furthermore, in 2012, the American Bar Association stated that this ethical rule also extends to assistance provided by &quotnon-human&quot technology and other tools. Basically, this means lawyers must supervise the work of AI programs and possess a sufficient understanding of the technology to ensure it meets the ethics standards.

Prevent Lawyer Ethics Violations When Using ChatGPT

1. Never Enter Confidential Client Information Into ChatGPT.

The use of ChatGPT for lawyers requires a level of care, responsibility and due diligence. For example, attorneys need to take steps to ensure confidential client information is not disclosed or inputted into ChatGPT. Why? Because the terms of use for ChatGPT specifically state that content shared or provided to the chatbot is &quotnot private.&quot Specifically, Section 3(c) of ChatGPT's terms of use policy states in part:

&quotWe may use Content from Services other than our API…to help develop and improve our Services. You can read more here about how Non-API Content may be used to improve model performance. If you do not want your Non-API Content used to improve Services, you can opt out by filling out this form. Please note that in some cases this may limit the ability of our Services to better address your specific use case.&quot

In addition, OpenAI - the company that created ChatGPT - published an FAQ page which expressly states, &quotPlease don't share any sensitive information in your conversations.&quot

2. Do Not Rely on ChatGPT for Legal Research or Case Law Analysis.

AAttempting to use ChatGPT for substantive legal research and other complex tasks is akin to playing with fire. A prime, real-life example of the ethical risks (and consequences) of using ChatGPT for advanced legal tasks can be found in an associate at a New York law firm who made national news after it was discovered he relied on ChatGPT for a brief in his client's personal injury case. The AI-generated brief cited six non-existent court decisions, according to Reuters.com.

3. Always Verify ChatGPT Responses for Accuracy and Compliance

Currently, the use of ChatGPT for legal tasks requires a second level of human review to ensure accuracy, quality, consistency, and compliance with the applicable rules of professional conduct. As indicated above, ChatGPT is not perfect and so one's law practice cannot solely depend on it. The technology is in a fledgling state so putting all of your proverbial eggs into a document reviewed or generated by AI is not recommended. Review all AI-generated content for legal accuracy, tone, completeness, and compliance with your jurisdiction's ethics rules before using it in client-facing documents or court filings.

4. Reassess Billing Practices as AI Changes Workflow.

Another important consideration with ChatGPT for lawyers is how automation could potentially impact, either positively or negatively, your billing practices. For example, providing accurate billing estimates to clients (based on an estimated number of hours for an actual attorney to complete a task) can become more challenging if you, or your firm, begins automating more and more tasks across its legal strategy. You also need to proactively find areas or issues where you can be of greater service to your client, assuming more of your time is freed by using automation to complete mundane or tedious legal tasks.

5. Implement an AI policy to ensure consistent use within your firm.

An AI policy will help ensure that all attorneys and other team members use ChatGPT responsibly and for appropriate tasks. Here are three recommended practices for developing an AI policy that will meet these goals:

• Assess the scope of your firm's AI policy - Will your law firm's AI policy cover all forms of AI or just generative AI? At this time, it may make sense to focus primarily on generative AI since that would mean your policy addresses the innovative Large Language Models that serve as the foundation of ChatGPT's technology.

• Obtain feedback and input from stakeholders across your firm – You should consider utilizing an &quotall hands on deck&quot approach when drafting your firm's AI policy. Solicit feedback from members of HR, sales, marketing, business development, operations, IT, and so forth. This is important because each group or team within your firm may see different potential use cases and different ramifications of how AI can impact firm operations.

• Ensure your firm's AI policy is a living document – Considering we're in the infancy of AI technology, it is necessary for your firm's AI policy to be nimble, modifiable, and easy to update as you encounter emerging use cases, external market conditions, and other developments.

Learn More About ChatGPT for Lawyers and the Interplay with Lawyer Ethics with NBI Resources

NBI offers OnDemand video courses and training related to AI tools for legal professionals, the rules of professional conduct, legal writing, legal research and the legal industry in general. Check out these helpful resources here:

• Legal Ethics: What Attorneys Need to Know About Internet Use

• Workflow Optimization in the Law Office

Wrapping Up: Use AI Responsibly to Enhance Your Legal Practice

The legal industry is undergoing a transformation - and AI-driven tools like ChatGPT are at the center of it. From improving turnaround times on contract drafting to assisting with internal legal documents and optimizing client communications, the potential is enormous. But ethical use requires care, oversight, and a solid understanding of the technology.

As you explore how to use AI for your firm - whether through Microsoft integrations, chatGPT prompts, or legal AI chatbots - always prioritize professional standards. With the right safeguards in place, you can enhance productivity, protect your clients, and future-proof your practice across a variety of practice areas.

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Patrick Austin is an attorney specializing in administrative law, including regulatory and compliance matters with experience working in both the public and private sector. Patrick graduated from Old Dominion University in 2009 with a BA in Technical & Professional Writing. He then went on to attend George Mason University School of Law and graduated in 2013. Upon passing the Virginia Bar Exam, Patrick went into private practice joining a boutique law firm focused on civil litigation. Patrick gained invaluable experience overseeing pre-trial discovery, responding to complaints, taking and defending depositions, and so forth. Patrick currently practices law in the Richmond, VA area.

This post was written by a guest blogger. Although this article was thoroughly reviewed by NBI staff, the views, opinions and positions expressed within the post are those of the author alone and do not represent those of NBI. The accuracy, completeness and validity of any statements made within the post are not guaranteed. We accept no liability for any errors, omissions or representations.