AI ETHICS
Introduction
A. Purpose and Scope
This white paper provides guidance on the ethical, responsible, and practical use of generative AI by criminal defense lawyers, from solo practitioners to firm members to public defenders (collectively, “defenders”). The guidance draws directly from the ABA Model Rules of Professional Conduct and reflects the realities of day-to-day representation and practice. Defenders at every level will find practical frameworks for integrating AI tools into their work while maintaining their professional and ethical obligations. This white paper also serves as a call to action. Prosecutors across the country have already begun experimenting with enterprise-level AI tools to manage evidence, streamline discovery, and automate review of wrongful convictions and resentencing. 3 As the Vanderbilt Project on Prosecution Policy has documented, prosecutors use AI even when it is “often unclear how accurately and fairly these tools complete the task at hand.” 4 Defenders cannot afford to remain on the sidelines. The adversarial nature of the criminal legal system demands that defenders achieve parity or risk providing representation that falls short of constitutional and ethical standards. B. Why This Matters Now Generative AI has entered legal practice at a remarkable pace. When OpenAI released ChatGPT in late 2022, it reached approximately 100 million monthly active users within two months, making it one of the fastest-growing consumer applications in history. 5 The technology’s ability to predict, analyze, and produce writing strikes at the core of much legal work. As one commentator observed, AI now targets the “bread and butter” of what lawyers do. 6 Yet adoption remains uneven between prosecutors and defenders, and “[r]ecent years have seen an increase in the use of AI tools to support crime prevention, prosecution, sentencing, and other facets of the criminal [legal] system.” 7 Judges have largely permitted police and prosecutors to use “black box AI,” which refers to the types of AI tools and systems whose internal decision-making processes are hard to understand or explain, leading to transparency concerns. 8 Meanwhile, many public defender
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Parity in Practice: The Defender’s Duty to Ethically Use AI
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