AI ETHICS B. Balancing Duties of Competence, Confidentiality, and Candor
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Rule 1.1 – Competence
Model Rule 1.1 requires that lawyers provide “competent representation,” which demands “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment 8 to Rule 1.1 elaborates that maintaining competence requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” This technological competence obligation has direct implications for AI use. Defenders must understand how AI tools function before using them in client matters. This understanding need not reach the level of a computer scientist or software developer, but it must be sufficient to recognize the technology’s capabilities and limitations. A defender who uses an AI research tool without understanding that it might generate fabricated citations fails to meet the competence standard. Conversely, a defender with less experience using and understanding AI may fail to notice when a prosecutor intentionally or unknowingly misuses it. The competence obligation also connects to what some commentators call “calibration,” or the appropriate level of AI use for given clients or circumstances. 60 As Simshaw has observed, effective legal AI requires “calibration” that accounts for the specific consumers, legal issues, and underlying processes involved in each case. Defenders should not focus on “maximizing AI use,” but instead “making more informed decision about what AI should, and should not, be used for.” 61 Simshaw notes that legal service providers face increased pressure to adopt AI, and the calibration is essential for all lawyers. 62 Significant resource disparities exist between prosecution and defense in most jurisdictions. Prosecutors’ offices typically have larger budgets, more staff, and greater access to technology than public defenders or private counsel from smaller and/or solo firms. AI may widen these disparities if prosecutors adopt sophisticated AI tools while defenders lack resources for comparable technology. Moreover, the biggest companies offering AI tools to prosecutors often build their tools with prosecutors in mind and later market them to defenders as a second (less valued) market. Thus, some defenders may not trust the systems that were designed for prosecutors and may also be concerned that their use of the same exact system may interfere with their ability to challenge the prosecution’s use. These disparities raise fairness and competence concerns. If competence under Model Rule 1.1 requires technological sophistication that under-resourced defenders cannot afford, the ethical framework may demand what defenders cannot deliver. Clients of well-funded private counsel might receive AI- enhanced representation while indigent defendants receive manual-only defense — creating a two-
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Parity in Practice: The Defender’s Duty to Ethically Use AI
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