AI ETHICS
Executive Summary
Generative artificial intelligence (AI) presents both opportunities and risks for criminal defense lawyers. 1 With practical, strategic guidance and dedicated organizational governance, these tools can improve efficiency, support legal research, and help defense lawyers manage overwhelming caseloads and provide effective counsel. However, generative AI raises serious concerns about confidentiality, accuracy, fairness, and ethical compliance, and these concerns impact all participants in the American criminal legal system — from prosecution and defense to judges and juries. Some prosecutors’ offices are increasingly experimenting with enterprise-level AI tools, though resource disparities may hinder comparable adoption among some defender organizations. Moreover, AI has already impacted workflows and organizational structures at firms and defenders’ offices, and its ubiquity encourages skill flattening. 2 What is clear, though, is that defenders have an ethical obligation to use AI in their practice and in the courtroom, and a failure to do so could produce incompetent representation of and negative outcomes for criminal defendants. This white paper provides a framework for ethical and practical AI use across all types of criminal defense practice, grounded in the ABA Model Rules of Professional Conduct and best practices as described by practitioners, academics, and other experts. While AI tools can meaningfully improve efficiency and expand analytical capacity, those benefits are highly contingent on tool selection, implementation, and oversight. The white paper also recognizes that cost, access to training, and institutional resources remain significant barriers — particularly for solo practitioners, small firms, and under-resourced public defense offices — and discusses AI throughout as a set of tools whose value depends on informed, responsible, and ethical use. It explains what generative AI is, identifies its risks and limitations (including emerging issues like deepfakes and climate impacts), surveys its current use by prosecutors and its reception in courts, and provides practical guidance for defenders on important day-to-day decision-making, such as which tools to use and how to use them ethically and efficiently. It uses job-specific examples (e.g., sentencing memos and character statements) to explain where and how AI could be used and highlight potential ethical concerns in its use. Most importantly, it sets out a roadmap for drafting AI policies, including considerations for data privacy and security, verification, training, and compliance with judicial standing orders.
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Parity in Practice: The Defender’s Duty to Ethically Use AI
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