Attorney-Client Privilege and Confidentiality Update: A Lawyer's Guide to Ensuring Compliance with Ethical and Legal Duties and How to Minimize Risk of Malpractice Claims in the Face of Technology and Artificial Intelligence

We know that you have heard about Artificial Intelligence or AI and the related software and tools that utilize AI such as ChatGPT, Clio, or Law Bots, whether that be in the news, social media, or in your professional networks.  While some say that AI could revolutionize the practice of law, the technology is still in its infancy and there are various risks associated with using such technology in the practice of law. Not only are there many unanswered questions as to what AI tools can and will be used by lawyers to accomplish, it is unclear what, if anything, will be considered permissible use of AI under the rules of professional conduct and/or local state and federal laws. Indeed, while the American Bar Association has not issued a formal opinion on the ethical implications of the use of AI in the practice of law, certain federal judges have recently required attorneys who appear before them sign AI Pledges or the like attesting that he or she will not use AI. In addition, there are practical concerns relative to how the use of AI will impact your insurance coverage and can implicate your legal and ethical duties, including the duty of confidentiality. Ms. Dagley will discuss the ethical concerns related not only to the use of AI but also the potential risks and ethical implications of the use of metadata, electronic communications, and data security, including but not limited to:

• Practical issues related to malpractice insurance and coverage

• Relevant Rules of Professional Conduct, the attorney-client privilege, and recent ethics opinions and developments in the law

• Practical and ethical implications relative to electronic communications, metadata, and data security

• Practical and ethical implications relative to the use of AI in the practice of law

Learning Objectives:

1. Examine the recent developments and new ethics opinions on key model rules, including Rule 1.6 Confidentiality, and the attorney-client privilege

2. Identify and discuss risks created by metadata, electronic communications, and data security and how to avoid those risks and ensure compliance with the rules of professional conduct

3. Discuss ethical dilemmas and risks created by the use of AI technology and tools in the practice of law

4. Review practical ways to ensure compliance with the rules of professional conduct and how to minimize risk of malpractice claims