AI Ethics in Law: Emerging Considerations for Pro Bono Work and Access to Justice

Erin Palmer, Associate Director, Corporate Pro Bono

Artificial intelligence (AI) is rapidly advancing, prompting a critical dialogue about its regulation and innovation within the legal field. State bar associations and courts are increasingly scrutinizing the use of generative AI tools, striving to balance technology’s transformative potential with the need to safeguard the integrity of legal practice. This regulatory landscape is particularly pertinent as AI promises to enhance the work of pro bono lawyers and revolutionize access to justice for underserved communities. Understanding how regulatory efforts intersect with innovative applications of AI in pro bono legal services sheds light on the challenges and opportunities in ensuring ethical oversight and improved access to legal support.

ABA Issues Formal Opinion on Ethical Implications of AI

The American Bar Association issued Formal Opinion 512 on “Generative Artificial Intelligence Tools” on July 29, 2024. The Opinion provides guidance on the ethical use of AI in legal practice. It emphasizes that attorneys must use AI tools in a manner that complies with professional conduct rules, focusing on maintaining competence and ensuring the accuracy and reliability of AI outputs.

The Opinion highlights the need for lawyers to understand the limitations of AI, including potential biases and inaccuracies, as well as to ensure that AI does not compromise client confidentiality. It also stresses the importance of transparency, including informing clients about the use of AI in their legal matters, and advises that lawyers must remain accountable for the decisions and advice provided through AI tools. Additionally, it highlights the supervisory responsibilities of managerial lawyers, who must establish and enforce policies on AI use, train staff on ethical and practical applications, and ensure adherence to professional conduct standards.

The American Bar Association’s ethics opinion does not directly discuss access to justice, but the considerations it raises about competency, confidentiality, and transparency are all factors that can influence access to justice.

How States Are Leading the Way on AI Ethics and Considering Access to Justice

The American Bar Association’s Opinion comes on the heels of several state bar associations offering guidance on the ethical implications of the use of generative AI. Some state bar associations expressly consider the impact of AI on pro bono services and access to justice, which can help ensure that AI integration in legal practice enhances efficiency while equitably supporting underserved populations:

• Texas: In 2023, the State Bar of Texas established the Taskforce for Responsible AI in the Law (TRAIL). TRAIL’s “Interim Report to the State Bar of Texas Board of Directors” emphasizes enhancing access to justice through the integration of AI by supporting legal aid and pro bono providers in adopting AI technologies. It highlights the potential for AI to improve legal services for low-income individuals but also underscores the need for robust ethical guidelines and cybersecurity measures to protect sensitive information. The Report suggests expanding AI education for legal professionals and developing AI-focused legislative proposals to ensure responsible use while bridging the justice gap.
• Illinois: The Illinois State Bar Association’s Standing Committee on Artificial Intelligence and the Practice of Law issued a Report on September 27, 2023, highlighting AI’s potential to enhance legal practice and access to justice by increasing efficiency and reducing costs. The Report suggests that to fully realize these benefits, the legal industry must adapt its billing practices from the traditional billable hour model to embrace alterative fee structures that better reflect the value provided to clients, which could make legal services more accessible and affordable. The Report emphasizes the need for self-regulation and adaptation by lawyers to accommodate these changes.
• New York: The New York State Bar Association issued its “Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence” in April 2024. The Report highlights the need for comprehensive guidelines on the use of AI in legal practice. It emphasizes the importance of maintaining ethical standards, ensuring transparency, upholding client confidentiality, and supervising AI use while integrating AI technologies. In addition, the Report calls for ongoing education for legal professionals on AI tools to ensure effective and ethical use in legal proceedings. The Report specifically acknowledges the potential of generative AI to significantly enhance pro bono legal services by improving accessibility, efficiency, and affordability for underserved populations. As noted in the Report, AI can streamline client intake, aid in legal research and document preparation, and help overcome language barriers, making legal assistance more readily available. The Report notes concerns, however, about the accuracy of AI-generated legal advice and the potential high costs of implementing these technologies, which could exacerbate existing inequities if not properly addressed.
• Minnesota: The Minnesota State Bar Association’s Working Group on AI adopted a Report on the “Implications of Large Language Models (LLMs) on the Unauthorized Practice of Law (UPL) and Access to Justice” on June 20, 2024. The Report highlights how tools like ChatGPT could revolutionize the legal field by enhancing efficiency and accessibility, particularly for underserved populations. It emphasizes the potential of these tools to improve access to justice by assisting self-represented litigants with tasks such as form completion, legal information retrieval, and plain language translations. To harness these benefits while mitigating risks, the Report recommends establishing an “Access to Justice Legal Sandbox” to test and refine generative AI applications, ensuring they adhere to ethical standards and enhance equitable legal access without violating unauthorized practice of law statutes.

Other state bar associations have provided ethics guidance that does not explicitly address the impact of AI on access to justice, but nonetheless carries implications for pro bono work:

• California: The State Bar of California’s Standing Committee on Professional Responsibility and Conduct approved Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law on November 16, 2023. This guidance emphasizes a lawyer’s duty of competence, requiring them to understand and review AI-generated outputs for accuracy and to avoid bias, maintain confidentiality, avoid over-reliance on AI technology, and consider disclosing to clients the intent to use AI. The guidance also highlights the duties of managerial and supervisory lawyers to establish policies regarding permissible use of AI, as well as the importance of not charging clients for time saved using AI.
• Florida: The Florida Bar’s Special Committee on Professional Ethics issued Advisory Opinion 24-1 on January 19, 2024. The Advisory Opinion emphasizes that while lawyers may employ generative AI in their legal practice, they must uphold stringent ethical standards, including safeguarding client confidentiality, ensuring the accuracy and competence of AI-generated work, avoiding unethical billing practices like double-billing, and adhering to advertising regulations. The Opinion underscores a lawyer’s ongoing responsibility to understand and mitigate the risks associated with AI technology, advocating for informed client consent when necessary and maintaining overall competence in the use of AI.
• Kentucky: On March 15, 2024, the Kentucky Bar Association issued Ethics Opinion KBA E-457 to offer interim guidance as its Task Force on Artificial Intelligence continues its work. The Opinion stresses that lawyers must stay competent with AI tools to maintain legal competence and efficiency. Lawyers are required to inform clients about the use of AI in their cases, particularly when tasks are outsourced or when additional costs are incurred, while ensuring client confidentiality and adherence to court rules. Additionally, lawyers must supervise AI use within their firms to ensure it meets ethical standards and does not compromise client data or legal accuracy.
• D.C.: The DC Bar issued Ethics Opinion 388 on “Attorneys’ Use of Generative Artificial Intelligence in Client Matters” in April 2024. The Ethics Opinion emphasizes that while advances in technology, including generative AI, enhance legal practice, they do not alter fundamental ethical obligations of lawyers, such as competency, confidentiality, and candor. Lawyers must be cautious in their use of AI, understanding that it may produce unreliable results and may handle client data in ways that could compromise confidentiality. They must ensure that their use of AI adheres to professional conduct rules, including accurate billing, protection of client information, and proper supervision of technology use.
• Pennsylvania: The Pennsylvania Bar Association and Philadelphia Bar Association jointly issued Formal Opinion 2024-200, “Ethical Issues Regarding the Use of Artificial Intelligence” in June 2024. The Opinion emphasizes lawyers’ obligation to maintain competence across all relevant technologies, including generative AI. It also stresses that lawyers must exercise caution when using AI tools due to their potential to generate inaccurate or biased content, highlighting the need for lawyers to verify AI-generated output, maintain client confidentiality, and address potential conflicts of interest. They must also communicate transparently with clients about AI use, manage AI-related expenses appropriately, and stay updated on ethical standards for AI application.

The State Bar of Michigan has provided ethics guidance specifically for judicial officers in Ethics Opinion JI-155, issued on October 27, 2023. The Opinion emphasizes that judicial officers must stay adept with evolving technologies, particularly AI, and understand its impact on their conduct and decisionmaking. It highlights potential ethical challenges posed by AI, such as issues of bias, partiality, explainability, and accuracy, while also noting how AI can support judges in areas like docket management, legal research, document drafting, and answering questions.[1]

And more state bar association guidance is on the way with other state bar associations establishing entities to provide this guidance, including the Washington State Bar Association’s Legal Technology Task Force (formed in March 2024) and the Maryland State Bar Association’s Artificial Intelligence Task Force (formed May 2024).[2]

Courts Tread More Cautiously with AI Regulations

Court guidance on AI largely centers on ensuring accuracy and maintaining existing ethical standards rather than addressing broader issues of pro bono service and access to justice. Courts have been cautious about integrating AI into legal practice, emphasizing the need for human oversight and adherence to established rules. As such, while AI’s potential to impact pro bono work and enhance access to justice is significant, it has not yet been a primary consideration in judicial AI regulations.

Some state courts have taken action, including New Jersey’s Supreme Court, whose Committee on Artificial Intelligence and the Courts issued Preliminary Guidelines on the Use of Artificial Intelligence by New Jersey Lawyers on January 24, 2024. The guidelines provide that a lawyer using AI, particularly generative AI, must adhere to ethical guidelines that emphasize accuracy, truthfulness, and client confidentiality under the state’s Rules of Professional Conduct. In addition,the District of Columbia Courts established an Artificial Intelligence Task Force in March 2024 to examine best practices for AI use, explore AI’s role in enhancing court operations and accessibility considering the digital divide and equity concerns, and develop rules for AI use in court proceedings.

While state courts have begun to address the implications of AI in legal practice with a focus on both ethical guidelines and potential impacts on access to justice, federal courts have generally

approached AI regulation with caution, concentrating on maintaining existing standards of accuracy and oversight. The United States Court of Appeals for the Fifth Circuit, for example, considered but ultimately rejected a proposed rule requiring attorneys to certify the use and review of generative AI in legal documents, stating that existing rules already mandate accuracy and reliability in filings and that AI use alone cannot excuse non-compliance. The decision reflects the court’s position that current rules sufficiently address the need for accuracy in legal submissions. Similarly, the Second Circuit has stated that existing ethics rules already cover the use of AI.

Other federal circuit courts have convened committees to explore the implications of AI in legal practice, including the Ninth Circuit and the Third Circuit. The Fourth Circuit  has tasked its information technology staff with drafting a report and recommendations on AI use. With only a handful of federal district courts issuing specific guidance on AI, such as the Eastern District of Texas’s requirement for lawyers to review and verify AI-generated content and the Eastern District of Michigan’s proposal for AI disclosure, it remains to be seen whether these efforts will lead to more comprehensive or proactive regulations. Law360 Pulse has created a tracker to monitor  individual federal judges’ orders on AI use to help understand the current landscape. [3]

Looking Ahead

As state bar associations and courts continue to grapple with the ethical implications of AI, the integration of AI into pro bono work and access to justice initiatives reveals both promising opportunities and significant challenges. Recent discussions, such as National Center for State Courts and the Thomson Reuters Institute’s Fundamentals of AI in the U.S. Court System webinar and the Washington Council or Lawyers’ Using AI to Further Access to Justice webinar, highlight AI’s potential to streamline and enhance legal services. The high costs of advanced tools pose challenges for smaller organizations, however, and underscore the need for cost-effective solutions. As pro bono lawyers navigate this evolving landscape, balancing technological advancements with ethical responsibilities will be key to ensuring that AI supports rather than undermines the goal of equitable and effective legal services.

^[1] The Artificial Intelligence Rapid Response Team, a project of the Conference of Chief Justices and the Conference of State Court Administrators, and supported by the National Center for State Courts, recently published a comprehensive report, Guidance for Use of AI and Generative AI in Courts, which highlights AI’s potential benefits and challenges for courts and offers insights and recommendations for judges and court staff.

[²] This list is not exhaustive. Ethics rules and guidance vary by jurisdiction and can change over time, particularly with regard to evolving technology. Please consult specific ethics guidelines for your jurisdiction and stay updated on any changes to ensure compliance with the most current guidance.

[³] This list is not exhaustive. Ethics rules and guidance vary by jurisdiction and can change over time, particularly with regard to evolving technology. Please consult specific ethics guidelines for your jurisdiction and stay updated on any changes to ensure compliance with the most current guidance.