“Florida lawyers may use generative AI (artificial intelligence) in the practice of law but must protect the confidentiality of client information, provide accurate and competent services, avoid improper billing practices, and comply with applicable restrictions on lawyer advertising.”

In its first advisory opinion of 2024, The Florida Bar issued the above statement on the use of AI within a law practice. It also notes that advisory ethics opinions are not binding.

The confidentiality of client information must be maintained whenever a Florida lawyer uses generative AI in their work product. As part of protecting this confidentiality, the lawyer is expected to research the AI program’s policies on data retention, data sharing, and self-learning.

Lawyers retain responsibility for their work product and professional judgment. They should establish policies and practices to ensure that the use of generative AI aligns with their ethical obligations. It’s important to recognize that the adoption of generative AI does not absolve lawyers of their ethical duties. Instead, they must treat it as a tool that requires supervision and validation before incorporating it into legal work.

The utilization of generative AI does not allow lawyers to engage in improper billing practices, such as double-billing.

Generative AI chatbots interacting with clients or third parties—such as the use of a chatbot on a personal injury law firm website—must adhere to lawyer advertising restrictions. Additionally, they should prominently display a disclaimer clarifying that the chatbot is an AI program and not an actual lawyer or law firm employee. Lawyers must also stay informed about the risks and advantages of new technology, ensuring they maintain technological competence.

This opinion of The Florida Bar applies to attorneys who are licensed to practice law in Florida.

The State Bar of California also staked out an early position on the use of generative artificial intelligence in the practice of law. The Bar’s Committee on Professional Responsibility and Conduct (COPRAC) issued a November 16, 2023 memorandum outlining recommendations regarding a lawyer’s use of generative AI. It reports that new regulations and rules may be needed in the future, but at the present time the state’s Rules of Professional Conduct are strong enough to adequately address most AI-related concerns.

Law Firm Marketing and the Use of Artificial Intelligence

While it may take some time for specific rulings on law firm marketing and the use of generative AI to be issued, law firms should continue to follow longstanding attorney advertising guidelines such as those listed below.

• Not be promissory in regard to future results or outcomes.
• Not be comparative or qualitative in describing the law firm’s services (i.e., the “best” lawyers).
• Not be misleading, which could occur by omission as well as misleading statements.
• Be cautious on the use of words like “expert” or “specialize,” which are often limited to board certified attorneys.
• Maintain disclaimers on marketing materials as needed. This often varies by state.
• Comply with any filing requirements for marketing materials. In Florida, for example, the Bar requires that marketing materials be filed for review by the Bar prior to use.
• Clearly identify required information, like the name of an attorney responsible for an ad and the location of a physical office.

Protecting client confidentiality, which is an ethics consideration rather than attorney advertising, is also an essential priority at all times.

It could be worthwhile for every law firm to address the use of generative AI—whether in law firm marketing, legal research, or work product creation—through their internal Executive or Marketing Committee.

Click on the link to read the full Florida Bar Ethics Opinion on Artificial-Intelligence.

Click on the link to read the California State Bar Recommendations on Artificial Intelligence.

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