AI ETHICS
6.
Client Communication
Model Rule 1.4 requires lawyers to explain matters to clients as needed for informed decision- making. AI use may trigger this obligation in several circumstances.
When AI will process sensitive client information, clients may have legitimate interests in understanding how their information will be handled. Some clients may have strong preferences about data security or may work in industries with regulatory constraints on information handling. One interpretation of Model Rule 1.6 could be that clients must provide informed, explicit consent before a defender may use confidential, privileged, and/or any personal information in an AI tool. Another interpretation could be that defenders should merely explain how a defender intends to use AI in the case. Explaining that the defender uses enterprise AI systems with specified security features — or, conversely, that the defender has chosen not to use AI for their matter — respects client autonomy. The client may also request that the defender not use AI at all during their representation. A defender should be prepared to explain how foregoing AI could be beneficial or detrimental to the case, especially if opposing counsel is likely to use it. When AI substantially shapes case strategy or work product, transparency may be appropriate. If AI analysis identifies a promising defense theory or AI-generated drafting forms the backbone of a brief, some clients may wish to know. The scope of required disclosure will depend on the AI’s role, the client’s sophistication, and any preferences the client has expressed. Defenders do not necessarily need to obtain consent for every AI use, and there is currently no ABA opinion or other guidance demanding it. Routine applications that do not materially affect representation (e.g., using AI to format documents or schedule appointments) likely fall within the implied authorization that accompanies the representation. But when AI plays a significant role in how the defender approaches the client’s matter, disclosure and consent to utilize AI tools promotes trust, protects the attorney- client relationship, and satisfies the most conservative reading of the ethical rules.
7.
Responding on Your Feet
Part II identified the risk that over-reliance on AI could erode or “flatten” defenders’ advocacy skills. Courtroom practice demands capacities that AI cannot replicate, including reading a witness’s body language, responding to unexpected testimony, adjusting strategy based on a judge’s reactions, and advocating with the passion and authenticity that effective defense requires. Defenders should guard against skill erosion. Several strategies may help:
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Parity in Practice: The Defender’s Duty to Ethically Use AI
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