Florida Adopts Ethics Guidelines for Use of Generative A.I.

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“Florida lawyers have new guidelines for using generative AI after the Board of Governors voted unanimously January 19 to approve Ethics Advisory Opinion 24-1.”  See J. Ash, Board of Governors adopts ethics guidelines for generative AI use – The Florida Bar (Jan. 23, 2024).  Mr. Ash reports that the version is substantially similar to the proposed draft that was described in my earlier blog  “Florida bar weighs whether lawyers using AI need client consent” (Oct. 26, 2023).  Florida already has a rule requiring some continuing legal education on legal technology.  See 40th State Adopts a Duty of Technological Competence – Is It a Good Idea? (Mar. 31, 2022).

Mr. Ash also reported that: “In a related action, the board approved a proposal by Special AI Committee Co-Chair Gordon Glover to ask the Florida Courts Technology Commission to post a warning on the E-Filing Portal regarding the potential for errors in AI-generated documents.”

The Florida opinion states that: “In sum, a lawyer may ethically utilize generative AI but only to the extent that the lawyer can reasonably guarantee compliance with the lawyer’s ethical obligations.”  Opinion 24-1 – The Florida Bar.  Those obligations include, in a non-exhaustive listing, confidentiality, avoidance of frivolous positions, candor to the tribunal, truthfulness in statements to others, avoiding clearly excessive fees, and, compliance with restrictions on advertising.  The Opinion suggests that lawyers “continue to develop competency” with new technologies and be aware of both the risks and benefits of them.

The ABA Model Rule and Maryland Attorneys’ Rules of Professional Conduct 1.1 have long included a requirement of competent representation.  Some jurisdictions have adopted rules requiring technological competence.  40th State Adopts a Duty of Technological Competence – Is It a Good Idea?