Imagine sitting in a ZOOM conference waiting for your client, John, to arrive and suddenly "John's Assistant" enters the ZOOM meeting room, but John is not even on the call yet. You try to talk to the assistant, but you receive no response. Then John, running late as usual, enters the room. You ask John about his assistant and John tells you that it is an artificial intelligence note-taking application that will record, take notes, and summarize the meeting afterwards. It also can create to-do lists from the meeting, topics, and a transcript. John is praising the program, and you are impressed by its features. Then several questions come into your mind. Are attorney-client conversations allowed to be recorded? Haven't lawyers been disciplined for recording client conversations in the past? Is it ethical to record attorney-client conversations, even when the client consents? What ethical considerations come into play? What about confidentiality, creation of evidence, inadvertent disclosures, and more?
This scenario is becoming a reality for many lawyers. As AI technologies become increasingly integrated into various professional fields, the legal industry is also experiencing a shift toward utilizing AI tools for themselves and their clients. The ABA has recently authored Formal Opinion 512 discussing the ethical risks of generative AI (GAI).1 Though it did not specifically address AI note-taking programs,2 Opinion 512 did offer "general" guidance for attorneys attempting to navigate the AI landscape, and provided that it is anticipated that updated guidance will develop regarding professional conduct issues.3 In spite of the fact that Opinion 512 did not specifically address AI note-taking programs, we can utilize its ethical guidance in evaluating such programs. AI note-taking programs exhibit some of the same ethical concerns, and some legal concerns, as general GAI, specifically regarding competence, confidentiality, communication, security (data management), evidence creation, accuracy, reliability, supervisory concerns, and more.4
"Lawyers must remain vigilant due to the fast-paced evolution of all AI tools."
UNDERSTANDING AI NOTE-TAKING TOOLS
Rule 1.1 obligates lawyers to provide competent representation to clients.5 This duty requires lawyers to exercise the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation," as well as to understand "the benefits and risks associated" with the technologies used to deliver legal services to clients.6 Lawyers may ordinarily achieve the requisite level of competency by engaging in self-study, associating with another competent lawyer, or consulting with an individual who has sufficient expertise in the relevant field.7 To competently use an AI note-taking program, lawyers need not become AI experts. Rather, lawyers must have a reasonable understanding of the capabilities and limitations of the AI note-taking program. This is not a static understanding. Lawyers must remain vigilant due to the fast-paced evolution of all AI tools.8
AI note-taking tools leverage advanced algorithms to transcribe and organize spoken language into written text. These tools can generate detailed notes, summaries, timelines, and transcripts from attorney-client consultations or meetings, offering a streamlined way to capture and organize information. These programs are designed to understand context, discern key points from idle chatter, and interpret with human-like understanding. It is like having a personal assistant that you can call anytime at a low cost. If you have a virtual meeting, through any platform, you can invite your AI note-taking program to attend it as well, and it listens, records, transcribes, and organizes the entire meeting. It is a silent participant but with a big impact!
There are several AI note-taking programs available for anybody in the market. Each AI note-taking program offers something different, such as speech-totext transcription, intelligent note-taking, contextual note-taking, summarization, collaborative note-taking, knowledge graphs, or a combination of these features. Some of the most popular third-party AI note-taking programs include Otter,9 Fireflies.ai,10 Read.ai,11 ClickUp,12 and many more.13
Many clients and attorneys are turning to these AI notetaking programs for their efficiency and organization. However, not many clients or attorneys have stopped to think about the ethical, and potential legal, implications.
EVIDENCE CREATION/INADVERTENT WAIVER OF PRIVILEGE
One of the first main areas of concern with AI notetaking programs is evidence creation and the inadvertent disclosure of such evidence. By way of example, imagine a corporate client using an AI note-taking program in an attorney-client meeting. The AI note-taking program records the conversation and develops a transcript, summary, action items, and video of the meeting. The client reviews the documentation and prints out the transcript to give to people in the corporation. In addition, the client forwards the recording to other personnel. None of the people to which the transcript or recording was provided are part of the attorney-client privilege. Therefore, once the client sent out the documentation to the other parties, even if done so without being aware of the implications, the attorney-client privilege was waived and now the contents and communication of the meeting are subject to discovery, including all the AI note-taking generated documentation. This could potentially be a tremendous amount of evidence that could even become part of the evidentiary record in the legal proceeding.
"Lawyers must assess the likelihood of disclosure, unauthorized access, and sensitivity of the information; safeguards to be implemented; and the pros/cons of using any AI note-taking program prior to its use."
This scenario could also apply to solely internal meetings of the corporate client. For example, a corporate client starts utilizing AI note-taking programs during all its internal calls and meetings. Some, if not all, of these are not protected by confidentiality. As such, if a litigation or dispute arises in which the meetings are relevant, the company will have created a massive amount of discoverable evidence where none would have existed in the past. The only evidence of meetings before AI was any handwritten notes or the memories of the people involved in the meeting. Creating recordings, transcriptions, and more for every meeting can be harmful to the client's case.
So how do lawyers combat this issue when clients insist upon using AI note-taking programs during attorneyclient consultations and/or other internal or external meetings? There are some key things that lawyers should discuss with their clients if the clients want to use AI notetaking for any meeting,14 including:
- Volume of evidence: AI tools can produce extensive documentation that may be subject to discovery and clients must be warned of the potential harm this could cause in the event of litigation or a dispute. It's also important to discuss how the documentation will be stored and protected to avoid unintentional disclosure.
- Management practices: Implementing robust document management practices is essential, such as maintaining secure access controls and ensuring that AI-generated documents are handled in accordance with legal standards. This would also include how the documents are stored, who has access to them, and a policy regarding deletion/purging of the documentation.
- Inadvertent disclosure: It's important to warn clients that forwarding the documentation or giving it to any third party not protected by the attorney-client privilege could result in waiver of the attorneyclient privilege and confidentiality, even if done inadvertently. Clients should discuss forwarding any documentation prior to doing so with their attorney.
- Documentation management: Advise clients on how to manage and handle AI-generated documentation to minimize the risk of disclosure. This includes limiting access to sensitive information and using secure channels for sharing documents.
CONFIDENTIALITY
Confidentiality15 is a cornerstone of the attorney-client relationship. Opinion 512 warns lawyers that they must keep confidential all information relating to the representation of a client, regardless of its source, unless the client gives informed consent, disclosure is impliedly authorized to carry out the representation, or disclosure is permitted by one of the exceptions under Rule 1.6(b).16
The use of AI note-taking tools must not compromise this fundamental rule. Lawyers must assess the likelihood of disclosure, unauthorized access, and sensitivity of the information; safeguards to be implemented; and the pros/cons of using any AI note-taking program prior to its use.17 The client must evaluate the risks and make an informed decision regarding whether they are willing to accept the risks and potentially waive confidentiality of the information. To aid in this evaluation, clients and lawyers must thoroughly review any relevant privacy policies and data management practices of the AI notetaking program. The key areas to assess include:
- Data storage and collection practices: Understand where and how data is stored. Ensure that the AI notetaking program stores data in a secure environment and complies with relevant data protection regulations.
- Sharing of data with third parties: Investigate whether the AI note-taking program shares data with third parties. This includes any cloud services or external vendors involved in data processing.
- Control over data: Ensure that control over the collected data remains with the client and/or the lawyer. This includes understanding who has access to the data and under what conditions.
- Security measures: Evaluate the security features of the AI note-taking program to prevent data breaches. This includes encryption methods, access controls, and regular security audits.
- Secure transfer and sharing: Ensure that any data transferred or shared is done so securely. This involves using encrypted channels and secure protocols.
- Permanent deletion of data: Confirm who retains the right to delete data permanently. The client, or the lawyer, should have control over the removal of their data from the AI note-taking program.
ACCURACY AND RELIABILITY
The accuracy of AI note-taking generated documentation is vital for ensuring that documentation reflects the true content of attorney-client consultation and/or meeting. Inaccurate notes can lead to misunderstandings or misrepresentations. Inaccurate notes can also lead to potential violation of the Rules of Professional Conduct regarding dishonesty, fraud, deceit, or misrepresentation.18 Therefore, any output from an AI note-taking program must be carefully reviewed to ensure that the transcriptions, assertions, and documentation created is not false. This is vitally important if the AI note-taking generated documentation is relied upon by the client in deciding what to do in a legal proceeding or if the documentation becomes subject to discovery and used against the client in a legal proceeding.
To ensure accuracy attorneys should request a copy of any documentation produced by the AI note-taking program to thoroughly review it for accuracy. If the documentation is not accurate it should be corrected immediately.
SUPERVISION
Associates and supervising partners have an ethical responsibility to understand the capabilities and limitations of AI note-taking programs. Pursuant to Rules 5.1 and 5.3, managerial attorneys also have a duty to train, monitor, create clear policies, and supervise subordinate lawyers and non-lawyers to ensure their actions conform to the Rules of Professional Conduct.19 These responsibilities have implications for the use of AI note-taking programs by lawyers and non-lawyers.
CONCLUSION
The integration of AI note-taking tools into legal practice offers significant advantages in terms of efficiency and accuracy. However, it also introduces complex issues related to evidence creation, confidentiality, data management, and more. Lawyers must proactively address these concerns by discussing risks and benefits with clients, ensuring that AI tools do not compromise the integrity of attorney-client interactions. By following best practices and maintaining a clear understanding of ethical responsibilities, lawyers can effectively navigate the challenges associated with AI note-taking programs while protecting client interests and maintaining the highest standards of confidentiality and accuracy.
"Lawyers must proactively address these concerns by discussing risks and benefits with clients, ensuring that AI tools do not compromise the integrity of attorney-client interactions."
Footnotes
1. ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024). Generative AI can create various types of new content, including text, images, audio, video, and software code in response to a user's prompts and questions. Common GAI programs include ChatGPT, CoPilot, and many more.
2. ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024).
3. Id.
4. Id.
5. Model Rules of Pro. Conduct R. 1.1 (Am. Bar Ass'n. 2024).
6. Id.
7. Id.
8. ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024).
9. Otter.ai, https://otter.ai/.
10. Fireflies.ai, https://fireflies.ai/.
11. Read.ai, https://www.read.ai/.
12. ClickUp, https://clickup.com/.
13. Miguel Rebelo, The 9 Best AI Meeting Assistants in 2024, Zapier (March 25, 2024), https://zapier.com/blog/best-ai-meetingassistant/.
14. Model Rules of Pro. Conduct R. 1.4 (Am. Bar Ass'n 2024) (regarding communicating with the client on the means of the representation, including the use of AI programs); ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024).
15. Model Rules of Pro. Conduct R. 1.6 (Am. Bar Ass'n 2024); ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024).
16. ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024) (stating the same privileges are extended to former and prospective clients under Model Rules of Pro. Conduct R. 1.9(c) and 1.18(b)).
17. Id.
18. Model Rules of Pro. Conduct R. 8.4(c) (Am. Bar Ass'n 2024).
19. Model Rules of Pro. Conduct R. 5.1 (Am. Bar Ass'n 2024); Model Rules of Pro. Conduct R. 5.3 (Am. Bar Ass'n. 2024); ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024).
Originally published by Res Gestae.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.