In Part I of this series, we talked about the general approach by the Law Society of Ontario (LSO) to lawyers’ use of generative Artificial Intelligence (AI). We noted that the LSO has broad expectations around competence, confidentiality, bias, and transparency.
But of course it goes well beyond that. As an Ontario lawyer, you will also know that the LSO has its Rules of Professional Conduct, which mandate compliance with certain detailed expectations. These target the various aspects of the daily work performed by lawyers, and those to whom they may delegate certain tasks.
You may already be broadly aware of these Rules and the specific topics they cover. But when it comes to using AI in your practice, you may not be able to put your finger on which of them governs the most common scenarios. In this second Part, we will dig a little deeper into that narrow topic.
Specific Rules Touching on AI Use
Here are some key provisions of the LSO’s Rules of Professional Conduct that are relevant to the use of AI in legal practice:
Rule 2.1: Integrity
Perhaps above all, lawyers are required to maintain integrity and to conduct themselves with honesty and candour. When using AI in legal practice, this means they must not misrepresent the capabilities of AI to their clients or other parties, for example.
On the flip-side, it also means lawyers who use AI to help draft legal content (such as contracts, opinions, and other documents) cannot charge clients at the full rate and for the full duration that this kind of drafting would otherwise require, if they had done it themselves.
Rule 2.1: Responsibility to the Profession
Lawyers have a responsibility to uphold the standards and reputation of the legal profession. This is more than just upholding the integrity of the profession; it requires conduct that does not compromise the public’s trust in the legal system.
When applied to the use of AI, this translates into a duty to ensure that any AI-powered technology is used properly, and in a way that is responsible and ethical.
Rule 3.1: Competence
Lawyers are required to provide competent legal services to their clients. As with any other tool they adopt for use in their legal practice, whenever lawyers use AI they must ensure they personally have the necessary competence and expertise to do so.
Furthermore, lawyers must also ensure that the use of AI does not compromise their ability to provide competent legal services.
Rule 3.2: Communication
Lawyers must communicate effectively and in a timely manner with their clients. Lawyers who use AI must ensure:
- They are communicating with clients about the use of AI and its impact on their case.
- Any communication generated through AI-powered technology is accurate and complete.
- They are not relying solely on AI-generated information when communicating with clients.
Rule 3.2: Honesty and Candour
Lawyers have a duty to be honest and forthright in their dealings with others, including clients, other lawyers, and the court. This means lawyers must:
- Ensure that the technology is not used to misrepresent or conceal information.
- Disclose to their clients all information that is relevant to the client’s representation.
- Be transparent with clients about how AI is being used and how it may impact their case.
- Be transparent about the limitations of AI.
- Ensure that clients understand that AI is being used to assist in legal practice, not to replace the lawyer’s judgment.
Rule 3.3: Confidentiality and Privilege
Another one of the key duties imposed on lawyers is to maintain the confidentiality and privilege of their clients’ information. When using AI in legal practice, this means they must ensure they take appropriate measures to safeguard client information, and that the use of AI does not compromise confidentiality or privilege.
Rule 3.4: Avoiding Conflicts of Interest
Lawyers are required to avoid conflicts of interest in their legal practice. This means the AI technology cannot be used in a way that creates a conflict of interest. For example, if the AI algorithm is biased in favour of a particular client or outcome, the lawyer must ensure that this bias is not used to the disadvantage of other clients or parties.
Rule 3.6: Fees
The fees charged to clients by lawyers must be fair and reasonable. When using AI in legal practice, for example to draft documents or to assist with conducting research, lawyers must ensure that their fees reflect the use of AI and are not inflated or unjustified.
Rule 5.1: Candour to the Tribunal
Lawyers have a duty to be candid and truthful with tribunals hearing their clients’ matter. When using AI in legal practice, lawyers must ensure that they are providing accurate and reliable information to tribunals and that the use of AI does not compromise their duty of candour.
Rule 5.1: Representing a Client Resolutely
Needless to say, lawyers have a duty to represent their clients resolutely within the bounds of the law. When using AI in legal practice, they must ensure that the technology is not used to advance their client’s interests in a way that violates the law or the ethical obligations of the legal profession.
Rule 6.1: Supervision of Lawyers and Students
Delegation and supervision are another area of concern. When using AI in legal practice, lawyers in supervisory positions must ensure that those under their supervision are using the technology in an ethical and responsible manner, and in full compliance with the Rules of Professional Conduct.
Next Up: Practical Examples and FAQs
You might be surprised at how many Rules can conceivably pertain to using AI in your practice. It’s admittedly a long list. But it reflects only the principles, not the day-to-day reality.
In our final instalment of the series, we will offer some practical examples, tips and FAQs on how the Rules and the LSO’s broader expectations might impact lawyers on a daily basis, when it comes to using generative AI in their law practices.
*This article was originally published by Russell Alexander in Law360 on September 3rd, 2024.
