Cleveland Law Library Weblog

The ABA Issues Opinion on Generative AI

The American Bar Association standing committee on Ethics and Professional Responsibility issued formal opinion 512 which identified potential risks for lawyers who are using generative AI technology. The opinion offers general guidance while focusing on professional conduct such as competence, confidentiality, communication, supervisory responsibilities, and fees. The risks associated with the use of GAI can vary, and the opinion mentions specific issues of meritorious claims and candor toward a tribunal. The ABA addresses concerns of GAI tools having "hallucinations", providing responses that have no basis in fact, false citations to nonexistent cases, inaccurate analysis of legal authorities, and many other inconsistencies. Though the Ohio Bar Association has not issued a formal opinion regarding generative AI, the current Ohio rules are similar to the guidelines presented by the American Bar Association. To conclude, formal opinion 512 affirms that lawyers have duties of both legal and technological competence, and lawyers utilizing AI must have a reasonable understanding of GAI tools. 

New ABA Formal Opinion on Lawyers Posting to Listservs

On May 8, 2024, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued formal opinion 511 containing guidance for lawyers who request advice from their colleagues through a listserv. Specifically, the Opinion summary states that:

"Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a
listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a
reasonable likelihood that the lawyer’s questions or comments will disclose information relating
to the representation that would allow a reader then or later to infer the identity of the lawyer’s
client or the situation involved. A lawyer may, however, participate in listserv discussions such as
those related to legal news, recent decisions, or changes in the law, without a client’s informed
consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the
disclosure of, information relating to a client representation. "

As far as I can tell, the OHIO RULES OF PROFESSIONAL CONDUCT do not mention listserv conduct specifically, but Ohio Rule 1.6 does pertain to client confidentiality. 

Supreme Court Code of Conduct

On Monday, the United States Supreme Court announced that it has formally adopted a code of conduct for the justices. The court issued a 15-page document that included five canons of conduct on issues such as when justices should recuse themselves and acceptable outside activities. 

ABA Issues Formal Opinion 480 on Lawyer Blogging and Confidentiality

On Friday, the American Bar Association (ABA) issued Formal Opinion 480 regarding lawyer blogging and confidentiality. Citing Rule 1.6 of the ABA's Model Rules of Professional Conduct, the  opinion states that:

"Lawyers who blog or engage in other public commentary may not reveal information relating to
a representation, including information contained in a public record, unless authorized by a
provision of the Model Rules."

Ohio Supreme Court Board of Professional Conduct Issues 2 New Advisory Opinions

Earlier this week, the Ohio Supreme Court Board of Professional Conduct issued 2 new Advisory Opinions on lawyers participation in lawyer referral services and law students with legal intern certificates :

1) 2016-3: "SYLLABUS: A lawyer should carefully evaluate a lawyer referral service, or similar online model, to ensure that it complies with the Rules of Professional Conduct and the ethical requirements of the lawyer. Where the service meets all of the elements of a lawyer referral service, a participating lawyer must ensure that the service complies with Gov.Bar R. XVI, in order for the lawyer to comply with the Rules of Professional Conduct. A lawyer’s participation in an online, nonlawyer-owned legal referral service, where the lawyer is required to pay a “marketing fee” to a nonlawyer for each service completed for a client, is unethical. A lawyer must ensure that the lawyer referral service does not interfere with the lawyer’s independent professional judgment under Prof.Cond.R. 5.4. A lawyer is responsible for the conduct of the nonlawyers of the service (Prof.Cond.R. 5.3), as well as the advertising and marketing provided by the service on the lawyer’s behalf. Prof.Cond.R. 7.1, 7.2, 7.3. Additionally, a fee structure that is tied specifically to individual client representations that a lawyer completes or to the percentage of a fee is not permissible, unless the lawyer referral service is registered with the Supreme Court of Ohio. Prof.Cond.R. 1.5, Gov.Bar R. XVI."

2) 2016-4: "SYLLABUS: A law student holding a legal intern certificate, issued by the Supreme Court under Gov.Bar R. II, is engaged in the limited practice of law and bound by the Rules of Professional Conduct. Conflicts of interest arising out of a legal intern’s current or former representation of clients are imputed to all lawyers in a private law firm when the intern is employed simultaneously as a law firm clerk. The conflicts of a former legal intern, newly employed as a lawyer, are not imputed to the lawyers in a law firm, but necessitate the screening of the lawyer from any matter he or she had substantial responsibility."

Ohio Supreme Court Board of Professional Conduct Issues Advisory Opinion About Lawyers Reporting Others' Misconduct

The Ohio Supreme Court Board of Professional Conduct has issued its second Advisory Opinion (2016-2) of the year. This Advisory Opinion covers a lawyer’s duty to report unprivileged knowledge of another lawyer’s misconduct. The Syllabus of the Opinion states that:

"A lawyer is required under Prof.Cond.R. 8.3 to report any unprivileged knowledge of a violation of the Rules of Professional Conduct to the Office of Disciplinary Counsel or a bar association's certified grievance committee. A lawyer shall not reveal privileged information relating to the representation of a client, including information protected by the attorney-client privilege. Prof.Cond.R. 1.6(a). A lawyer may reveal information relating to the representation of a client if the client gives informed consent under Prof.Cond.R. 1.6."

This Opinion replaces Opinion 90-01.

The Ohio Supreme Court provides all of its Advisory Opinions on this page, with various finding tools for accessing them.

Ohio Supreme Court Board of Professional Conduct Publishes Ohio Ethics Guide on Client File Retention

The Ohio Supreme Court Board of Professional Conduct has just published its first Ethics Guide on Client File Retention. This Guide covers applicable ethical and legal obligations and discusses confidentiality of client files, retention periods, different types of documents that may be considered property of clients, client retention policies, notices to clients, file closing procedures, destruction of files, emails, digital media and cloud storage, and succession planning. The Board of Professional Conduct also plans to issue more Ethics Guides in the future on "lawyer succession planning and lawyers transitioning to the bench from private or public practice." The Ohio Supreme Court has issued a Press Release containing additional details. 

The Ohio Supreme Court Has Issued An Advisory Opinion for 2016-1 on Lawyers' Flat Fees

As its first Advisory Opinion of the year, the Ohio Supreme Court has issued Opinion 2016-1 on lawyers' flat fees. The Syllabus of this Opinion states that:

"It is proper for a lawyer to enter a flat fee agreement requiring a client to pay a fixed amount in advance of representation. The flat fee agreement must comport with the Ohio Rules of Professional Conduct. Under Prof.Cond.R. 1.15(c), a lawyer is required to deposit flat fees and expenses paid in advance for representation into an IOLTA account, unless designated as “earned upon receipt” or similarly, and only may withdraw the fees as they are earned or the expenses as they are incurred. This is a change from former DR 9-102(A). Even if a flat fee paid in advance of representation is deemed “earned upon receipt,” “nonrefundable,” or similarly, Prof.Cond.R. 1.5 requires a lawyer to return any unearned portion of the fee if the lawyer does not complete the representation for any reason. Additionally, the Rules also require that a flat fee must not be excessive under Prof.Cond.R. 1.5(a); that a lawyer shall not provide financial assistance to a client, aside from advances of court costs and expenses of litigation under Prof.Cond.R. 1.8(e); and a lawyer is required to provide competent and diligent representation to each client under Prof.Cond.R. 1.1 and 1.3."

Ohio Supreme Court Advisory Opinions can be found on the Court's Advisory Opinions page.

Ohio Supreme Court Adopts New Amendments to Ohio Ethics Rules for Lawyers

The Ohio Supreme Court recently adopted several amendments to the Ohio Rules of Professional Conduct. Some of the major topics covered by the new changes include technology, confidentiality, client development, and client solicitation. According to Courtnewsohio.gov:

"A few of the more significant changes include:

• Requiring lawyers to maintain competency regarding the risks and benefits of technology (Rule 1.1), including making reasonable efforts to prevent the unauthorized disclosure of or access to confidential client information (Rule 1.6).
• Revising Rule 4.4 (Rights of Third Persons) to add electronically stored information to the scope of the rule and to expand on a lawyer’s duties if he or she inadvertently receives this type of information.
• Modifying Rules 7.1, 7.2, and 7.3 (Lawyer Advertising) to reflect advertising and solicitations that may be made via the Internet and in electronic format. In addition, the Ohio-specific portion of Rule 7.3 would be revised to correspond to references to telemarketing laws and rules contained in Board Advisory Op. 2013-2 (text message solicitations).
• Amending Rule 1.6 (Confidentiality) to allow lawyers to make a limited disclosure of confidential information to detect and resolve conflicts associated with a change in employment or a change in the ownership or composition of a law firm.
• Amending Rule 7.3 to prohibit the solicitation of potential clients who are minors or who are unable to make informed decisions regarding representation."

Ohio Attorneys with Last Names beginning with A-L-Don't Forget to File Your CLE Reports by 1/31/14

Just a quick reminder to Ohio attorneys whose last names begin with A-L. Don't forget to file your CLE report by January 31st. You can file online or by mail, but don't forget because there are sanctions for filing late or not filing, including fines and suspension from the practice of law.