On April 6, 2024, the New York State Bar Association Task Force on Artificial Intelligence (the Task Force) published its report examining the legal, social, and ethical impact of artificial intelligence (AI) and generative AI on the legal profession.

What was recommended in the report?

In particular, the Task Force recommended in its report the following measures:

• adoption by the New York State Bar of the guidelines outlined in the report;
• focus on education: Prioritizing education in addition to legislation, focusing on educating judges, lawyers, law students, and regulators to understand the technology so that they can apply existing law to regulate it;
• identification of risks for new regulation: Legislatures and regulators should identify risks associated with the technology that is not addressed by existing laws, which will likely involve extensive hearings and studies involving experts in AI, and as needed, adopt regulations and legislation to address those risks; and
• examination of the function of the law in AI governance: Examine the function of the law as a governance tool. Some of the key functions of the law in the AI context as highlighted in the report are:
  • expressing social values and reinforcing fundamental principles;
  • protecting against risks to such values and principles; and
  • stabilizing society and increasing legal certainty.

What were the guidelines outlined in the report?

Notably, the report recommended the following guidelines when utilizing AI or generative AI tools (collectively, 'tools') in legal practice:

• attorney competence: Lawyers should have a duty to understand the benefits, risks, and ethical implications associated with the tools, including their use for communication, advertising, research, legal writing, and investigation;
• scope of representation: Lawyers consider including in the client engagement letter a statement that the tools may be utilized in their representation of the client and seek the client's acknowledgment;
• diligence: Lawyers should consider whether the use of the tools will aid their effectiveness in representing their client;
• communication: While the tools can aid in generating documents or responses, lawyers must ensure that they maintain direct and effective communication with their clients and not rely solely on content generated from the tools;
• fees: If the tools would make a lawyer's work on behalf of a client substantially more efficient, then their use of (or failure to use) such tools may be considered as a factor in determining whether the fees they charged for a given task or matter were reasonable. If lawyers add a surcharge when using specific tools, then they should clearly state such charges in their engagement letter, provided that the total charge remains reasonable;
• confidentiality: When using the tools, lawyers must take precautions to protect sensitive client data and ensure that no tool compromises confidentiality. Even if their client gives informed consent for lawyers to input confidential information into a tool, lawyers should obtain assurance that the tool provider will protect their client's confidential information and will keep each of their client's confidential information segregated. Further, lawyers should periodically monitor the tool provider to learn about any changes that might compromise confidential information;
• conflicts of interest: A lawyer's use of the tools in a particular case may potentially compromise their duty of loyalty, by creating a conflict of interest with another client;
• professional independence: While the tools are not a 'person,' lawyers should refrain from relying exclusively on them or the output derived from them when providing legal advice and maintain their independent judgment on a matter; and
• solicitation and recommendation of professional employment: Lawyers may not use the tools to automatically generate phone calls, chat board posts, or other forms of solicitation, nor may they contract with another person to use the tools for such purposes.

Additionally, the report analyzed the benefits and risks of AI and generative AI use, as well as the impacts on the legal profession.

You can read the report here.