CALIFORNIA LAWYERS ASSOCIATION TASK FORCE ON ARTIFICIAL INTELLIGENCE

REPORT ON AI IN THE PRACTICE OF LAW, CALIFORNIA

On November 20, 2022, OpenAI released ChatGPT-an artificial intelligence ("AI") chatbot. ChatGPT quickly became the fastest-growing consumer application in history, estimated to have had 100 million active users within two months.¹ While ChatGPT could pass the Uniform Bar Exam and the Multistate Professional Responsibility Exam,² its hallucination of case law and potential embedded bias³ has left regulators with the task of designing rules that would allow legal practitioners to take advantage of the benefits of AI, while managing potential dangers.

The American Bar Association ("ABA") quickly sought to formulate guidelines as to how the profession should approach the use of AI. On February 5, 2023, its House of Delegates adopted a resolution at the 2023 ABA Mid-Year Meeting calling on organizations that "design, develop, deploy, and use artificial intelligence . . . systems and capabilities" to embrace the following guidelines: (1) AI products, services, systems, and capabilities should be subject to human authority, oversight, and control, (2) responsible individuals and organizations should be accountable for the consequences of AI use, unless they have taken reasonable measures to mitigate against that harm of injury, and (3) AI products should be transparent and traceable, while protecting associated intellectual property.⁴ The guidelines allow for the development of AI, while ensuring that AI remained within existing legal frameworks of culpability. In other words, humans would remain responsible for the oversight and usage of the technology as the technology developed.

The State Bar of California ("State Bar") sought a similar balance as it released practical guidance based on existing Rules of Professional Conduct ("Rules"). By mapping the common risks for the profession presented by AI technology directly onto the salient Rules, the State Bar has led the way in assisting the state’s lawyers to integrate this valuable new tool into their practice in a safe way. And in doing so, the State Bar guidelines acknowledge significant legal, ethical, and redistributive consequences and corresponding duties that are by-products of the integration of generative AI technology, as it advances, into the state’s existing legal and ethical framework.