California Bar Passes Disclosure and Billing Guidelines for AI

The California Bar on Thursday approved new guidelines for lawyers using artificial intelligence, moving the state to the forefront on ethics guidance for using the technology in legal practice.

“This would be, to my knowledge, the very first AI item that is specifically approved by a regulatory agency for lawyers,” Erika Doherty, program director for the bar’s Office of Professional Competence, said at a meeting of the California Bar’s Board of Trustees.

“The benefit of that is that there is guidance available for lawyers as of right now,” she added. “The downside of that is that this is an evolving technology, and so it’s going to need to be continually updated.”

The best practices guidance calls for lawyers to consider disclosing use of generative AI to their clients and to not charge hourly fees for time saved by using the tech tools. It also urges lawyers to ensure that humans are scrutinizing AI-generated outputs for inaccuracy and bias.

The move marks an “interim step to provide guidance on this evolving technology while further rules and regulations are considered,” according to the professional conduct committee that drafted the guidance.

The approved recommendations also include a call to work with state lawmakers and the California Supreme Court to reexamine the definition of unauthorized practice of law in light of generative AI.

The technology has the potential to help close the access to justice gap, but “it could also create harm if self-represented individuals are relying on generative AI outputs that provide false information,” the professional conduct committee warned.

Other state bars also are working on AI guidance.

The Florida Bar’s ethics committee on Monday released a proposed opinion recommending that lawyers seek client consent before using AI systems if confidential information may be disclosed. The bar also called for oversight by human lawyers of the AI’s outputs, and addressed ethical billing practices by attorneys using generative AI.

The Florida Bar proposed opinion is open for comment until January.

— With assistance from Joyce Cutler