Understanding the duty of competence for attorneys using generative AI

What does it mean for an attorney to use generative AI (“GAI”) competently? How much does the attorney need to know about the technology to ethically utilize it? Are there certain tasks for which using GAI is inappropriate? This Article explores recent guidance by the American Bar Association and state bar associations regarding attorneys’ ethical duty of competence and use of GAI. When synthesized, this guidance establishes the principle of informed decision-making, which requires the attorney know enough about the risks and benefits of the GAI tool they are using to make an informed decision that using it for a particular task is in the client’s best interest. Informed decision-making includes an obligation to mitigate against any limitations of the GAI tool being used by retaining cognitive agency and verifying outputs.