Directive Guidelines on the Use of Generative Artificial Intelligence (GAI)
Introduction
The Law Office of Will M. Helixon is committed to providing exceptional legal services while upholding the highest ethical standards. This directive outlines the guidelines for the use of Generative Artificial Intelligence (GAI) tools by our attorneys, “of counsel,” paraprofessionals, and employees. Adherence to these guidelines is mandatory to ensure compliance with professional responsibilities and to protect our clients’ interests.
Purpose
The purpose of this directive is to:
- Enhance the efficiency and quality of legal services through the responsible use of GAI tools.
- Ensure compliance with ethical obligations concerning competence, confidentiality, communication, supervision, candor toward tribunals, and reasonable fees.
- Safeguard client information and maintain the integrity of the legal profession.
- Competent Representation
1.1 Understanding GAI Tools
- Obligation to Learn: All attorneys and staff must have a reasonable understanding of how GAI tools operate, including their capabilities, limitations, potential inaccuracies, biases, and associated risks.
- Continuous Education: Stay informed about developments in GAI technology relevant to legal practice, especially within the context of military law and the firm’s areas of specialization.
1.2 Independent Verification
- Verification Required: Independently verify all outputs generated by GAI tools for accuracy and reliability before using them in client representation or submitting them to any tribunal.
- Exercise Judgment: Do not rely uncritically on GAI outputs. Use professional judgment to evaluate the information provided.
1.3 Maintaining Professional Judgment
- Aid, Not Replacement: Use GAI tools as an aid to supplement legal work; they cannot replace your own legal analysis, judgment, and expertise.
- Responsibility: You remain fully responsible for all work produced. Ensure that the use of GAI tools aligns with the client’s best interests and the firm’s standards.
- Confidentiality
2.1 Assessing Risks Before Use
- Risk Evaluation: Prior to inputting any client-related information into a GAI tool, evaluate the risk of unauthorized disclosure or access, both within and outside the firm.
- Sensitive Information: Give special consideration to military-related information, classified materials, and any data protected under national security regulations or confidentiality agreements.
2.2 Informed Consent Required
- Obtain Consent: If there is a significant risk that client information may be disclosed through the use of a GAI tool—especially with self-learning models that retain input data—you must obtain the client’s informed consent before proceeding.
- Documentation: Document the informed consent in writing and retain it in the client’s file.
2.3 Ensuring Informed Consent
- Clear Explanation: Provide the client with a clear explanation of the risks, benefits, and implications of using the GAI tool specific to their situation.
- Avoid Generalizations: Do not rely on general or boilerplate consent forms; the explanation must be tailored to the particular GAI tool and the client’s circumstances.
2.4 Understanding Terms of Use
- Review Agreements: Thoroughly review and understand the GAI tool’s terms of service, privacy policies, and data handling practices.
- Compliance: Only use GAI tools that comply with the firm’s confidentiality standards, ethical obligations, and any applicable legal requirements.
- Communication with Clients
3.1 Duty to Communicate
- Assess Need for Disclosure: Determine whether disclosure of the use of GAI tools is required based on the nature of the representation and the client’s expectations.
- Enhance Trust: Open communication enhances trust. Ensure clients are adequately informed about the methods used in their representation when appropriate.
3.2 When Disclosure is Required
- Client Inquiry or Agreement: Provide full disclosure if a client inquires about the use of GAI tools or if disclosure is mandated under the engagement agreement or client’s guidelines.
- Impact on Fees: Communicate with the client when the use of a GAI tool affects the basis or reasonableness of the attorney’s fee.
- Significant Decisions: Inform the client if the GAI tool’s output will influence a significant decision in their case, such as evaluating litigation outcomes or strategic choices.
- Inputting Client Information: When intending to input client information into a GAI tool, obtain informed consent as outlined in Section 2.
3.3 Assessing the Need for Disclosure
- Evaluate Factors: Consider the client’s objectives, scope of representation, sensitivity of the information, and how the GAI tool processes data.
- Proactive Communication: Even when not strictly required, proactively informing clients about the use of GAI tools is encouraged to maintain transparency.
- Candor Toward the Tribunal and Meritorious Claims
4.1 Ethical Responsibilities in Litigation
- Meritorious Claims (Rule 3.1): Do not bring or defend proceedings without a basis in law and fact that is not frivolous.
- Candor Toward the Tribunal (Rule 3.3): Do not knowingly make false statements of fact or law to a tribunal or fail to correct them.
- Honesty and Integrity (Rule 8.4(c)): Do not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
4.2 Risks with GAI Tools
- Recognize Potential Inaccuracies: Be aware that GAI tools may generate inaccurate information, such as nonexistent legal opinions or misleading arguments.
- Thorough Review: Carefully review and verify all GAI outputs before incorporating them into legal documents, pleadings, or submissions to courts or tribunals.
- Mandatory Disclosure: Disclose the use of GAI to the tribunal if required by court rules or if necessary to prevent misleading the tribunal.
- Supervisory Responsibilities
5.1 Establishing Firm Policies
- Policy Enforcement: Managerial attorneys must enforce these guidelines on the permissible use of GAI tools within the firm.
- Policy Development: Ensure that policies address compliance with ethical obligations, confidentiality requirements, and security measures specific to our practice areas.
5.2 Supervision of Subordinate Lawyers and Staff
- Ensure Compliance: Supervisory attorneys must ensure that all subordinate lawyers, paraprofessionals, and staff comply with ethical obligations when using GAI tools.
- Training and Oversight: Provide regular training and oversight to maintain adherence to this directive.
5.3 Training and Education
- Ethical and Practical Use: Offer training on the ethical considerations and practical applications of GAI tools relevant to our practice.
- Understanding Risks: Educate all personnel on the limitations, potential biases, and risks associated with GAI tools.
- Security Protocols: Ensure that everyone understands and follows security protocols to protect client information.
5.4 Third-Party Providers
- Due Diligence: Vet any third-party providers of GAI services to ensure they adhere to professional obligations, including confidentiality and competence.
- Written Agreements: Establish written agreements with providers that include provisions for confidentiality, data security, and compliance with ethical standards.
- Confidentiality and Security Measures
6.1 Data Protection
- Configure Tools Securely: Configure GAI tools to preserve client confidentiality and security.
- Prevent Unauthorized Access: Ensure that any data input into GAI tools is protected against unauthorized access or disclosure.
6.2 Due Diligence
- Investigate Tools: Assess the reliability, security measures, and policies of GAI tools, including any limitations of liability.
- Approval Required: Only use GAI tools that have been approved by the firm and meet our standards for data protection and ethical compliance.
6.3 Data Handling
- Retention Policies: Determine if the GAI tool retains or asserts rights over information submitted.
- Avoid Risky Tools: Do not use GAI tools that store client data in a way that could lead to unauthorized disclosure.
6.4 Risk Awareness
- Stay Informed: Keep abreast of potential cyber threats and implement measures to mitigate risks related to cyber-attacks or data breaches involving GAI tools.
- Incident Reporting: Immediately report any security incidents according to the firm’s incident response plan.
- Fees and Billing
7.1 Reasonableness of Fees
- Hourly Billing: Bill clients only for the actual time spent. If GAI tools increase efficiency and reduce time on tasks, adjust billing accordingly.
- Flat or Contingent Fees: Adjust fees appropriately if the use of GAI tools significantly reduces the amount of work required.
7.2 Expenses
- Charge for Actual Costs: You may charge clients for actual out-of-pocket expenses for GAI tools used specifically for their case.
- Overhead Costs: Do not bill clients for general overhead costs related to GAI tools unless agreed upon in advance.
7.3 Client Communication
- Fee Transparency: Explain the basis for any fees or expenses related to GAI tools before or within a reasonable time of commencing representation, preferably in writing.
- Billing Practices: Ensure transparency in how the use of GAI tools affects billing and expenses.
7.4 Training Costs
- Non-Billable Time: Do not charge clients for time spent learning to use GAI tools as part of maintaining professional competence.
- Client-Requested Tools: If a client requests the use of a specific GAI tool unfamiliar to you, and new skills are required, you may charge for this time only if agreed upon in advance with the client.
- Compliance and Enforcement
8.1 Monitoring and Review
- Regular Audits: The firm will regularly monitor the use of GAI tools to ensure compliance with this directive.
- Policy Updates: Review and update these guidelines as necessary to reflect changes in technology, law, and ethical standards.
8.2 Reporting Violations
- Obligation to Report: Report any violations of this directive immediately to the managing attorney or designated ethics officer.
- Disciplinary Action: Violations may result in disciplinary action, up to and including termination, in accordance with firm policies and applicable professional regulations.
8.3 Acknowledgment
- Written Confirmation: All attorneys, “of counsel,” paraprofessionals, and employees must acknowledge in writing that they have read, understand, and agree to comply with this directive.
- Ongoing Compliance: Adherence to this directive is a condition of continued association with the Law Office of Will M. Helixon.
Conclusion
The Law Office of Will M. Helixon is dedicated to leveraging advanced technologies like GAI tools to enhance our legal services while strictly adhering to our ethical obligations. By following this directive, we ensure that we maintain the highest standards of professional conduct, protect our clients’ interests, and uphold the integrity of the legal profession in the rapidly evolving landscape of technology.
Approved: Will M. Helixon, Founder & Chief Counsel
Date: October 18, 2024