Generative AI (Gen AI) tools can significantly streamline your immigration practice, enhance accuracy, improve client outcomes, and boost your competitive edge. While leveraging these cutting-edge tools offers numerous benefits, many attorneys continue to hesitate to incorporate this technology as it raises important questions about ethical obligations.

Although there are several considerations under the ethics rules in deciding to use Gen AI tools, including candor towards the tribunal and supervisory responsibilities, this article focuses on the following question: Are you obligated to disclose to your clients the use of Gen AI technologies?

A study found that 43% of attorneys using Gen AI in their practice have not disclosed it to their clients. This may stem from concerns about client reactions and fee structures, uncertainty about disclosure requirements, ongoing testing of the technology, or difficulty in discussing it with clients. 

On July 29, 2024, the American Bar Association (ABA) released a Formal Opinion (FO 512), providing some guidance on the issue of whether disclosure is at all required. The ABA and available state guidance generally agree that a lawyer’s ethical obligations have not changed: Similarly to the use of other third-party services and technologies, attorneys must continue to ensure client confidentiality, competence, and communication. While Gen AI does not alter these baseline rules, there are special considerations to take into account. Let’s take a closer look at the relevant ABA Model Rules of Professional Conduct. 

Relevant Model Rules 

MR 1.4: Communications

Model Rule 1.4 primarily governs a lawyer’s duty to communicate with their clients and advise them on critical matters related to their representation. Relevant sections state: 

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent… is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Given their advanced technological capabilities, Gen AI tools can play a more significant role in the substantive aspects of legal practice. Therefore, attorneys may need to disclose their use under various circumstances, including when these tools influence major decisions in a client’s case, if asked by a client about its use directly, or if it impacts fee structures. The level of client consultation, including whether informed consent is required, will depend on the facts of each specific case. 

MR 1.6: Confidentiality

Model Rule 1.6 governs a lawyer’s duty to maintain confidentiality relating to the representation of a client, with some exceptions: (1) client gives informed consent; (2) disclosure is implicitly authorized to carry out the representation; or (3) one of the disclosure exceptions applies to the specific situation, such as preventing crime or injury. Relevant sections state: 

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) ... 

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Before using Gen AI tools, lawyers must assess the risk of disclosing confidential information and Personal Identifiable Information (PII) data. This risk is high with publicly available AI tools, which may indiscriminately use PII data for training purposes. Attorneys should obtain informed client consent, especially if there is a risk of disclosing such data to external providers.

5 Practical Recommendations for Immigration Attorneys

1. The best practice is to disclose: Transparency not only builds trust but also aligns with the principle of acting in the client’s best interests. Not all cases will require the same level of disclosure. Evaluate the client’s expectations, the sensitivity and scope of the information, and the significance of the task where Gen AI is applied.
   
   
2. Understand the technology and its security: Understanding the technology enough to ask the right security questions is key. Determine if the information will be used for model training purposes, whether the software has any zero-data retention policy, or if the client information can be released to external parties. This information can normally be found in the Terms of Use or by asking the provider directly.
   
   
3. Incorporate Disclosure into Engagement Agreements: A good starting point for disclosure is in the client representation agreement. Explicitly mention the potential use and scope of Gen AI tools and use this as an opportunity to discuss your law firm’s AI policy with your client.
   
   
4. State-Specific Guidance: While the ABA provides some guidance, check the relevant laws and regulations of each jurisdiction in which you are licensed to ensure compliance. 
   
   
5. Use Technology to strengthen your firm’s competitive edge: Even if client disclosure is not strictly required under the ethics rules, consider using this to your advantage. Gen AI use is becoming widespread in various industries, and particularly in the legal profession. Being one of the first to adopt this technology can be used to market your practice as a cost-effective and technology-driven practice. 

To learn more about how CaseBlink ensures confidentiality of your client's data, visit our security page or contact us with questions at support@caseblink.com.