California Bar to Vote on AI Guidelines Over Disclosure, Billing

A California State Bar committee is calling for state lawmakers to consider regulations on non-lawyer use of AI legal products and recommending guidance for attorneys who use the technology.

The California Bar’s board of trustees could adopt recommendations this week from the group’s committee on professional responsibility and conduct on the use of generative AI by California lawyers, including on disclosure and ethical billing.

Generative AI’s increasingly sophisticated legal tools hold the promise of improving access to justice by offering free or low-cost legal advice to people who can’t pay for an attorney. But “while generative AI may be of great benefit in minimizing the justice gap, it could also create harm if self-represented individuals are relying on generative AI outputs that provide false information,” the conduct committee said.

The committee is calling for the board of trustees to work with California’s legislature and supreme court to determine if the unauthorized practice of law needs to be more clearly defined, and whether legal generative AI products require licensing or regulating.

The California committee’s recommendations also include non-binding best practices for lawyers using generative AI but stop short of setting ethics rules. It described the proposed guidelines as an “interim step to provide guidance on this evolving technology while further rules and regulations are considered.”

The “practical guidelines” ask attorneys to consider disclosing to clients when they use AI in their representation, and to not charge hourly fees for the time saved by using generative AI. Costs associated with generative AI may be billed “in compliance with applicable law,” according to the guidelines.

The guidance also addresses AI’s threats to confidential information and the need for humans to check the technology’s outputs. It called for the bar to develop a one-hour minimum continuing legal education course on generative AI.

Contentious Issue

The unauthorized practice of law—or non-lawyers giving legal advice—has been a contentious issue in California. Last year, Governor Gavin Newsom signed a bill into law limiting the state bar from exploring corporate ownership of law firms.

Nationwide, states are debating tightening or loosening restrictions on who can practice law. Utah, for example, allows entities that wouldn’t otherwise be permitted to practice law to register for a regulatory sandbox, where they can operate with oversight from the state.

The Florida Bar is also working on a set of ethical principles for generative AI. A Nov. 30 committee meeting will discuss questions including obtaining client consent for attorneys’ use of AI, the supervision of the technology, and fees. New York and New Jersey’s bar associations both have task forces looking at generative AI guidelines.

Earlier this year, two lawyers used generative AI for a court filing and didn’t check its work, not realizing the technology created citations to non-existent cases—a phenomenon known as hallucination. That case, Mata v. Avianca, was a wake-up call for many lawyers about AI’s risks.