New York State Bar Association issues AI usage guidelines for legal practice

April 10, 2024 Robert Abruzzese, Courthouse Editor

Richard Lewis, president of the New York State Bar Association, highlights the critical balance between harnessing AI's potential in legal work and safeguarding client confidentiality and ethical integrity. Photo courtesy of NYS Bar Association

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The New York State Bar Association (NYSBA) has released a comprehensive set of guidelines regarding the use of artificial intelligence (AI) in legal practice, following approval by its House of Delegates on April 6, 2024.

These guidelines are aimed at ensuring lawyers integrate AI tools into their practice without compromising ethical standards or client confidentiality.

The report, produced by the NYSBA Task Force on Artificial Intelligence, explains the necessity for attorneys to disclose the use of AI in client cases, emphasizing the maintenance of attorney-client privilege amidst rising concerns over data security. The task force has stressed that New York’s existing Rules of Professional Conduct offer a solid foundation for AI’s ethical application but highlighted the need for further education to navigate the technology’s complexities.

“AI can enhance the delivery of legal services,” said Richard Lewis, president of the NYSBA. “It obviously has enormous potential because it can already draft documents, conduct research, predict outcomes and help with case management. However, we have an obligation as attorneys to be aware of the potential consequences from its misuse that can endanger privacy and attorney-client privilege.”

The guidelines provide detailed advice across several areas, including attorney competence, scope of representation, diligence, communication, fees, confidentiality, conflicts of interest, supervisory responsibilities, professional independence, unauthorized practice of law, and voluntary pro bono service.

One key recommendation includes the inclusion of a statement in client engagement letters about the potential use of AI tools, seeking the client’s acknowledgment.

A lot of emphasis was placed on concerns about AI’s impact on confidentiality, with the task force advising lawyers to ensure robust data protection measures are in place to safeguard sensitive client information.

The report also calls for the establishment of a standing committee within the NYSBA to monitor AI developments and address ethical issues as they arise.

Vivian Wesson, chair of the task force and executive vice president and general counsel at the Board of Pensions of the Presbyterian Church, reflected on the dual nature of AI.

“Artificial Intelligence is the latest technological evolution that at one moment awes us, and the next fills us with anxiety,” Wesson said. “We are aware of the enormous impact it will have on our profession but are also familiar with the many risks it poses regarding confidentiality.”

Further recommendations include legislative consideration of AI regulation and a review by the New York State court system’s Appellate Division of the Rules of Professional Conduct to incorporate guidelines for AI and generative AI (GenAI) usage.