What ethical duties apply when a Kentucky lawyer uses artificial intelligence in client work?

Plain-English summary

The opinion answers seven questions about artificial intelligence in Kentucky law practice. It concludes that lawyers have a continuing duty to keep abreast of AI as relevant technology, and that reliance on AI does not displace the lawyer's duties of competence, communication, reasonable fees, confidentiality, candor, or supervision. The opinion also states that lawyers remain responsible for work produced with AI.

Routine use of AI-generated research does not by itself require disclosure to the client. The opinion identifies three circumstances that do require communication: the work is outsourced to a third party, the client will be charged for the AI expense, or a court or other rule requires disclosure. If an outside AI service will receive information protected by SCR 3.130(1.6), the opinion requires client consent. It also concludes that a lawyer must consider time saved through AI when determining a reasonable fee, and may charge an AI expense only after explaining the anticipated cost and obtaining the client's advance written agreement. Training and the cost of staying current on AI are treated as overhead, not client expenses.

The opinion requires lawyers to safeguard information entered into AI systems, including by reviewing a provider's terms and data practices. Lawyers must verify AI-generated facts and legal authorities, comply with court rules governing AI, correct inaccuracies discovered in filings, and be candid with a court about errors. Partners, managers, and supervisors must establish measures addressing AI use and train lawyers and nonlawyers on those measures.

In practice

Under this opinion, using AI does not reduce a Kentucky lawyer's responsibility for the resulting legal work. The lawyer must understand the tool sufficiently to use it competently, verify its output, preserve confidentiality, communicate when the opinion identifies disclosure or consent as necessary, and account for AI-related efficiency when charging fees.

The opinion holds that managerial and supervisory lawyers are responsible for measures that give reasonable assurance of compliance with the Rules when lawyers or nonlawyers use AI. It leaves the content of a firm's AI policy to each lawyer or firm, but requires attention to permissible uses, confidentiality risks, security practices, and training.

Common questions

Q: Must a Kentucky lawyer learn how artificial intelligence affects legal practice?

A: Yes. The opinion applies SCR 3.130(1.1) and its technology comment, concluding that lawyers have a continuing responsibility to understand the benefits and risks of relevant technology and that failing to use an available AI tool could eventually affect competence.

Q: Must a lawyer tell the client whenever AI is used?

A: No. The opinion says routine AI-generated research does not require specific disclosure unless the work is outsourced, the client is charged for the AI expense, or a court or other rule requires disclosure.

Q: May a lawyer bill a client for AI expenses?

A: Yes, if the client agrees in advance and the agreement is confirmed in writing after the anticipated cost and basis of the charge are explained. The opinion treats AI training and the cost of keeping current with AI developments as overhead that should not be charged to clients.

Q: May confidential client information be entered into an AI tool?

A: The opinion requires the lawyer to determine whether the tool provides reasonable and adequate security protections. If an outside AI service will receive protected information, or the proposed use otherwise risks disclosure, the opinion requires the client's informed consent.

Q: What review is required before filing AI-assisted work with a court?

A: The lawyer must verify the accuracy of facts, quotations, and legal authorities, review applicable court rules and procedures, and make any required certification. If an inaccuracy is later discovered, the opinion says the lawyer must correct it and notify the court of misleading statements.

Q: What duties do firm managers and supervisors have when others use AI?

A: The opinion applies SCR 3.130(5.1), requiring reasonable measures to assure that lawyers comply with the Rules. It concludes that policies, security practices, and training must address AI use by lawyers, nonlawyers, and external business partners under the firm's supervision.

Background and rules framework

The opinion applies existing Kentucky Rules of Professional Conduct rather than creating AI-specific duties. Its principal analysis addresses competence under SCR 3.130(1.1), communication under SCR 3.130(1.4), fees and expenses under SCR 3.130(1.5), confidentiality under SCR 3.130(1.6), candor under SCR 3.130(3.3), and managerial responsibility under SCR 3.130(5.1). It also cites the rules on frivolous claims, truthfulness, former and prospective client information, law-related services, and misconduct.

The Committee declined to address Kentucky's advertising rules because it considered those issues beyond its authority. It also declined to prescribe a particular AI policy, explaining that each lawyer or firm must determine how AI will be used and establish measures addressing the benefits and risks of the chosen products.

Citations and references

Rules of Professional Conduct:

• MR 1.1 / SCR 3.130(1.1): competence and relevant technology.
• MR 1.4 / SCR 3.130(1.4): communication about the means of representation.
• MR 1.5 / SCR 3.130(1.5): reasonable fees and communication of expenses.
• MR 1.6 / SCR 3.130(1.6): confidentiality of information.
• MR 3.1 / SCR 3.130(3.1): nonfrivolous claims and contentions.
• MR 3.3 / SCR 3.130(3.3): candor to the tribunal.
• MR 4.1 / SCR 3.130(4.1): truthfulness in statements to others.
• MR 5.1 / SCR 3.130(5.1): responsibilities of partners, managers, and supervisors.
• MR 8.4 / SCR 3.130(8.4): professional misconduct.
• SCR 3.130(1.8), SCR 3.130(1.9(c)(1)), and SCR 3.130(5.8): prospective or former client information and law-related services.

Cases:

• In re Burghoff, 374 B.R. 681 (Bankr. S.D. Iowa 2007), unreasonable billing and unattributed copied work.
• Mata v. Avianca, Inc., 2023 U.S. Dist. LEXIS 108263, 2023 WL 4114965 (S.D.N.Y. June 22, 2023), sanctions following false AI-generated citations.

Other opinions cited:

• KBA E-403, E-427, E-437, E-442, and E-446: technology, cloud computing, outsourcing, cybersecurity, and related duties.
• ABA Formal Ethics Opinion 08-451: outsourcing legal and nonlegal support services.
• ABA Formal Opinion 93-370: billing for professional fees and expenses.
• North Carolina Ethics Opinion 2007-12, Ohio Ethics Opinion 2009-6, and Virginia Ethics Opinion 1850: outsourced legal services.
• Florida Bar Ethics Opinion 24-1: generative AI in law practice.

See also

• ABA Formal Op. 512: Generative AI Tools
• Florida Bar Ethics Op. 24-1: Generative AI in Practice
• Alabama Ethics Op. 2026-01: Artificial Intelligence in Law Practice
• NC State Bar 2024 FEO 1: AI in Law Practice

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA%20E-457.pdf?ver=26b8saKGwR2UOr4Xy_25LQ%3d%3d

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-457
Issued: March 15, 2024

   The Rules of Professional Conduct are amended periodically. Lawyers should consult
          the current version of the rule and comments, SCR 3.130 (available at
                 http://www.kybar.org/237), before relying on this opinion.

Subject: The Ethical Use of Artificial Intelligence (“AI”) in the Practice of Law
Question #1: Like other technological advances, does an attorney have an ethical duty to
keep abreast of the use of AI in the practice of law?
Answer: Yes.
Question #2: Does an attorney have an ethical duty to disclose to the client that AI is being
used with respect to legal matters entrusted to the attorney by the client?
Answer: No, there is no ethical duty to disclose the rote use of AI generated research
for a client’s matter unless the work is being outsourced to a third party; the
client is being charged for the cost of AI; and/or the disclosure of AI generated
research is required by Court Rules.
Question #3: If the effect of an attorney’s use of AI reduces the amount of attorney’s time
and effort in responding to a client matter must the lawyer consider reducing
the amount of attorney’s fees being charged the client when appropriate under
the circumstances?
Answer: Yes.
Question #4: May an attorney charge the client for expenses related to using AI in the legal
practice?
Answer: If the client agrees in advance to reimburse the attorney for the attorney’s
expense in using AI, and that agreement is confirmed in writing, then yes, the
attorney may charge for those expenses. However, similar to the lawyer’s cost
of general overhead expenses, the costs of AI training and keeping abreast of
AI developments should not be charged to clients.
Question #5: If an attorney utilizes AI in the practice of law, is the attorney under a
continuing duty to safeguard confidential client information?
Answer: Yes.
Question #6: Does an attorney using AI have an ethical duty to review court rules and
procedures as they relate to the use of AI, and to review all submissions to
the Court that utilized Generative AI to confirm the accuracy of the content
of those filings?

Answer: Yes.
Question #7: Does an attorney serving as a partner or manager of the law firm that uses
AI, and/or supervising lawyers and/or nonlawyers in the law firm who are
using AI, have an ethical responsibility of ensuring that policies and
procedures regarding AI are in place, and that training has taken place to
assure compliance with those policies?
Answer: Yes.

REFERENCES
SCR 3.130 [Kentucky Rules of Professional Conduct] 3.130(1.1) & cmt. (2) & (6); (1.4); (1.5(a)
& (b)); (1.6); (1.8); (1.9(c)(l)); (3.1); (3.3); (4.1); (5.l(b); (5.8); and (8.4).
Cases:
In re Burghoff, 374 B.R. 681 (Bankr. S.D. Iowa 2007) 374 B.R. 681; Mata vs. Avianca, Inc., 2023
U.S. Dist. LEXIS 108263, 2023 WL 4114965 (S.D.N.Y. June 22,2023).
Ethics Opinions
KBA E-446 (2018); KBA E-403 (1998); KBA E-427 (2007); KBA E-437 (2007); and KBA E-442
(2017); ABA Formal Ethics Op. 08-451 (2008); ABA Formal Opinion 93-370 (1993); N.C. Ethics
Op. 2007-12 (2008); Ohio Ethics Op. 2009-6 (2009); Va. Ethics Op. 1850 (2010); Florida Bar
Ethics Opinion 24-1 (2024).
Miscellaneous
2023 Year-End Report of the Federal Judiciary" by John G. Roberts, Jr., Chief Justice of the U.S.
Supreme Court; American Bar Association, A Legislative History: The Development of the ABA
Model Rules of Professional Conduct, 1982–2013; President Joe Biden’s Executive Order on the
Safe, Secure and Trustworthy Development and Use of Artificial Intelligence dated October 22,
2023.
INTRODUCTION
Artificial intelligence (“AI”) is defined as “... the use... of computer systems or machines
that have some of the qualities that the human brain has, such as the ability to interpret and produce
language in a way that seems human, recognize or create images, solve problems, and learn from
data supplied to them….”1 AI is now the latest form of technology that may revolutionize the
practice of law. Whether AI is utilized by machine learning such as Google search, by deep
learning with voice recognition systems named Siri or Alexa, or Generative AI 2 (“GAI”) in
applications known as Chat GPT, Google Bard or Microsoft Bing, the potential use of AI in the

1
Cambridge English Dictionary at “artificial intelligence.”
2
The term “generative” has been found to have two neural networks, a generator, and a discriminator,
which are trained simultaneously through a competitive process. The generator creates new data, while the
discriminator evaluates whether the generated data is authentic or not. This adversarial training process
helps the generator improve over time, creating more realistic and convincing content. However, potential
misuse comes into play because generative AI can be used to create deepfakes or other deceptive content.

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practice of law is unlimited.3
As with all technological advances, attorneys are challenged to meet lawyer ethical
responsibilities when utilizing a new product and this applies to AI. Whether the attorney is
researching relevant case law, reviewing documents, or drafting court pleadings, care must be
taken that the attorney understands how AI works, how it may be used responsibly and in
conjunction with the Supreme Court Rules of Professional Conduct. 4 As U. S. Supreme Court
Chief Justice John G. Roberts, Jr., explained, “(A)ny use of AI requires caution and humility.” 5
The current Rules of Professional Conduct do not specifically address AI, but they do
require an attorney to “...keep abreast of the changes in the law and its practice, including the
benefits and risks associated with relevant technology.”6 While the use of AI continues to evolve,
some of the suggested benefits of AI for lawyers are:
 Streamlining legal research to find relevant case law, statutes, and precedents more quickly;
 Reviewing and analyzing large volumes of documents and summarizing them;
 Automating repetitive tasks to reduce the requirement for extensive manual labor;
 Detecting deception in emails or documents;
 Predicting case outcomes and legal trends based upon historical data;
 Expediting responses to client inquiries;
 Providing around-the-clock access to legal information and resources;
 Reducing legal expenses to the client due to accelerated research and document preparation.
Although the use of AI in the practice of law is relatively new, certain risks have already
become apparent, including but not limited to:
 AI may struggle to grasp complex legal concepts which can produce inaccuracies and
misinterpretations;
 AI models trained on biased data may perpetuate biases in the legal decision-making process;
 AI lacks transparency because of its use of AI algorithms which operate as “black boxes”
making it difficult to understand how AI arrived at its conclusions;.

3
When ChatGPT was asked to explain how it functions and compares to other AI providers, ChatGPT
answered, in general, as follows:
ChatGPT is based on Generative Pre-trained Transformer architecture and is trained using a diverse range
of internet text but does not have specific knowledge about the details of individual documents or sources.
Other AI providers use different architectures, training datasets, and methods. For example, Google’s BERT
(Bidirectional Encoder Representations from Transformers) focuses on bidirectional context understanding.
Further, ChatGPT is designed for natural language understanding, making it suitable for conversational
applications, and content generation. Other AI providers may offer a broader range of services, including
image recognition, speech processing, and domain-specific applications. Finally, ChatGPT advises that it
has options for users to fine-tune models for specific tasks, while other providers may offer more
customization options, allowing developers to fine-tune models for specific use cases.
4
SCR 3.130 et seq.
5
“2023 Year-End Report of the Federal Judiciary" by John G. Roberts, Jr., Chief Justice
6
SCR 3.130(1.1), Comment (6).

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 AI’s generative training may result in the disclosure of confidential client information ;
 AI may provide false information including citations to nonexistent legal “authorities;” and,
 AI may provide duplicative and/or irrelevant materials which may increase discovery
production expenses.
The Ethics Committee has issued Ethics Opinions discussing the ever-changing
environment of technology and its application to the Rules, and many of these Opinions are
applicable to AI.7 In addition to the guidance provided by these Opinions, we caution lawyers that
before using an AI product they review the provider’s privacy policies and its disclaimers in
handling client and attorney information.
Due to the many concerns surrounding the impact AI has to the ethical requirements of
lawyers, the Kentucky Bar Association formed a Task Force on Artificial Intelligence and the Task
Force is considering a lawyer’s responsible use of AI. Until the Task Force’s work is completed,
and years of usage have passed, lawyers should be mindful that it may be difficult or impossible
to answer many questions regarding the ethical use of AI. Further, we do not address Kentucky’s
Advertising Rules which may come into play if a lawyer intends to advertise the use of AI because
the Advertising Rules raise issues beyond the scope of this Committee’s authority.
In the interim it is intended that this Opinion will provide some practical guidance while
the Task Force explores multiple AI issues and whether amendments to the Rules of Professional
Conduct are appropriate to address the unique applications a lawyer faces in the use of AI. The
following commentary is a review of what we today consider the most crucial ethical issues when
using an AI tool; however, lawyers must be mindful to the future implications of using AI services
and the Rules governing lawyer conduct. 8
COMPETENCE
SCR 3.130(1.1) mandates that “(a) lawyer shall provide competent representation to a
client. Competent representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.” Two of the Supreme Court’s Comments to the Rules
elaborate on the scope of the competency requirement. The first point is Comment 2, as follows:
A lawyer need not necessarily have special training or prior experience to handle legal
problems of a type with which the lawyer is unfamiliar. … Some important legal skills,
such as the analysis of precedent, the evaluation of evidence and legal drafting, are
required in all legal problems. Perhaps the most fundamental legal skill consists of
determining what kind of legal problems a situation may involve, a skill that necessarily
transcends any particular specialized knowledge. A lawyer can provide adequate
representation in a wholly novel field through necessary study. Competent representation
7
See, KBA E-446; KBA E-403; KBA E-427; KBA E-437; and KBA E-442. For example, in E-437 the
Committee considered a new development in technology (cloud computing) and while the Opinion is not
directly applicable to the use of AI, many of the Committee’s comments would apply when a lawyer uses
AI. The Committee opined that lawyers may use cloud computing but must follow the Rules with regard to
safeguarding client confidential information, act competently in using cloud computing, properly supervise
the provider of the cloud service, and communicate with the client about cloud computing.
8
We remind lawyers that the ethical implications of using AI also apply to all of a lawyer’s non-lawyer
activities; specifically, “a lawyer is a lawyer is a lawyer” and the Rules of Professional Conduct apply to
all of a lawyer’s actions. SCR 3.130(5.8) (“Responsibilities regarding law-related services”).

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 can also be provided through the association of a lawyer of established competence in the
 field in question.

The second point is Comment 6, as follows:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes
in the law and its practice, including the benefits and risks associated with relevant
technology, engage in continuing study and education and comply with all continuing
legal education requirements to which the lawyer is subject.
Therefore, attorneys have a continuing ethical responsibility to maintain competence in their law
practice, and reliance upon technology to do so is just another aspect of the competency
requirement.
Indeed, for many years lawyers have used technology to not only attain competency in the
practice of law, but also to maintain their competence by utilizing computer research resources,
including Westlaw, LexisNexis, and Decisis, all of which are readily available. Internet research
also provides an additional level of resources for an attorney to best serve their clients’ needs. In
addition, many lawyers are now required to take training in, and become competent in, the use of
electronic filing in state and federal courts, as well as in most administrative proceedings.
Attorneys have already been using AI whether they realize it or not. “Spell check,”
“grammar search” and the auto correcting function on most emails employ AI, as do the
Shephardizing functions of legal research tools. We are told that these functionalities only scratch
the surface of what AI may be able to do for the practice of law in this ever-changing dynamic of
the technological revolution. As with any new advance in technology, lawyers are expected to
know how to use AI to maintain competence because, it is argued, it will allow lawyers to provide
better, faster, and more efficient legal services, and at a reduced cost to the client. In the near
future, using AI may become as commonplace as an attorney’s current use of other technological
systems which have now become an indispensable part of the practice of law.
There are many AI resources now available to the lawyer, and there is much discussion
about what AI resources are on the horizon, therefore, as AI tools become more refined, and their
use in the legal profession becomes more widespread, lawyers need to be aware that not using an
available AI tool may constitute a failure to meet the lawyer’s duty of attaining and maintaining
competence under Rule 1.1. For example, legal research may be more comprehensive using an AI-
generated function of computer research programs. At the same time, understanding how AI
works, (a) may enable an attorney to better respond to an opponent’s arguments or theories, or (b)
better analyze the evidence presented by the attorney’s adversary. In essence, the rapid
development of AI poses challenges for attorneys to continuously update their knowledge base in
order to maintain their competence.
COMMUNICATION
Consideration should be given to whether a lawyer has an ethical duty to advise the client
that AI is being utilized in respect to their matters. SCR 3.130(1.4)9 requires that a lawyer keep the

9
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed
consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be

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client reasonably informed about the status of their matter, to promptly inform the client of any
decision or circumstance which requires the client’s informed consent, and to obtain the client’s
informed consent of such decision or circumstance. Further, the attorney is required to “reasonably
consult” with the client about the means by which the client’s objectives are to be accomplished. 10
The word “reasonably” is intended to preclude an interpretation that the lawyer would always be
required to consult with the client when a particular act is impliedly authorized. 11 The Rule’s
Comments explain that the lawyer is to provide the client with sufficient information to participate
intelligently in decisions concerning the means by which the client’s objectives are to be pursued. 12
Thus, routine use of AI generated research in a client’s matter does not in and of itself require
specific communication to the client, unless the client is being charged for the cost of the
research,13 a third party service is being utilized to provide the AI research, or if the disclosure of
the use of AI generated research is required by Court or other rules. 14
Moreover, it is clear from prior opinions that when an attorney employs third party
providers, or outsources a client’s work, that communication of the “means” by which a
representation is to be accomplished requires that clients should be informed of such outsourcing. 15
If an outside AI service will be receiving information protected by the lawyer’s duty of
confidentiality under SCR 3.130(1.6), then obtaining client consent is required. Further, as
discussed below, the attorney should also have an agreement with the client about who is
responsible for paying the cost of such outsourced services.
LAWYER’S CHARGES FOR FEES & EXPENSES
As with other uses of technology, the lawyer’s charging of fees and expenses to a client
remains subject to the reasonableness standards of SCR 3.130(1.5(a) and (b)). 16 These standards

accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows
that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.
10
See SCR 3.130(1.4(a)(2)).
11
See American Bar Association, A Legislative History: The Development of the ABA Model Rules of
Professional Conduct, 1982– 2013, at 77 (2013).
12
SCR 3.130(1.4) Supreme Court Commentary at (3) and (4).
13
See the portion of this opinion regarding “Lawyers’ Charges for Fees & Expenses.”
14
See the portion of this opinion regarding “Duty to Comply with Court Rules When Using AI.”
15
See ABA Formal Ethics Op. 08-451 (2008); N.C. Ethics Op. 2007-12 (2008); Ohio Ethics Op. 2009-6
(2009); Va. Ethics Op. 1850 (2010).
16
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite
to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment will preclude other employment by
the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;

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provide the following two primary points in charging a client when the lawyer has used AI. First,
a reduced fee may be appropriate when a lawyer obtains an expeditious on point response to the
client’s matter because in all cases a lawyer’s fee must be reasonable. Accordingly, the attorney’s
charge for legal services must be adjusted to recognize the reduced legal work devoted to a client’s
matter when there is a successful result by virtue of using AI. Second, if there are expenses
associated with the use of AI, then who will bear the cost of implementing AI services, such as
paying for online usage, and/or reimbursing a third-party provider? If the client is to bear these
expenses, then before the charge can be made, the client’s written consent must first be obtained.
Regarding the attorney’s billings for client services and expenses, the essence of Rule 1.5
and the Supreme Court’s Comments to the Rule, require that a lawyer provide the client with
information about the lawyer’s fees and expenses, and then render billing statements that
adequately apprise the client as to the basis for the attorney’s billing and how it has been
determined. Advanced discussion with the client as to how AI expenses are to be paid are as
necessary as the agreement with the client as to the basis or rate of the lawyer’s fees. Ethics rules
suggest that a written statement that confirms the terms of the engagement with the client “…
reduces the possibility of misunderstanding.”17 If the lawyer intends to charge the client for AI
expenses and the client agrees to pay these expenses, then the lawyer should explain, in writing
and in advance, the anticipated cost of those expenses, the basis for the cost being billed, and the
terms of payment.18 There is an exception when the lawyer has regularly represented the client on
an already existing basis, but with any changes in the billing procedure being communicated to the
client.19
With regards to the time savings that an attorney using AI services may generate, an earlier
ABA Formal Opinion20 provided guidance which the attorney will continue to find helpful in
determining the propriety of the lawyer’s billing methods. The ABA Opinion explains that a
lawyer is obliged to pass the benefits of economies on to the client. Thus, the use of AI programs
may make a lawyer’s work more efficient, and this increase in efficiency must not result in falsely

(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be
responsible shall be communicated to the client, preferably in writing, before or within a reasonable time
after commencing the representation, except when the lawyer will charge a regularly represented client on
the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated
to the client.
17
See Comment (2) When the lawyer has regularly represented a client, they ordinarily will have evolved
an understanding concerning the basis or rate of the fee and the expenses for which the client will be
responsible. In a new client-lawyer relationship, however, an understanding as to fees and expenses must
be promptly established. It is desirable to furnish the client with at least a simple memorandum or copy of
the lawyer's customary fee arrangements that states the general nature of the legal services to be provided,
the basis, rate, or total amount of the fee and whether and to what extent the client will be responsible for
any costs, expenses, or disbursements in the course of the representation. A written statement concerning
the terms of the engagement reduces the possibility of misunderstanding.
18
See, SCR 3.130(1.5), Comments 2 and 3.
19
See, SCR 3.130(1.5(a)&(b)).
20
ABA Formal Opinion 93-370 (December 6, 1993).

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inflated claims of time.
It should be obvious that lawyers may not charge a client for hours not actually spent on a
client’s matter. In the case of In re Burghoff,21 the court found that the attorney’s brief contained
an extraordinary amount of research, and the attorney was directed to certify to the Court the author
of two submitted briefs. The Court found that 17 of the 19 pages of one brief were verbatim
excerpts from an article the lawyer found on the internet which had not been attributed to the
article’s author. The Court held, first, that it was a violation of the ethics Rules for an attorney to
“…engage in conduct involving dishonesty, fraud, deceit, or misrepresentation … by committing
plagiarism, …”.22 Further, the Court found that the attorney violated the ethics Rules by charging
his client for 25.5 hours of legal work in preparing the briefs which was unreasonable given the
actual labor invested in copying the article from the internet. Charging an unreasonable fee for
“legal work” was also considered a form of attorney misconduct. 23
While the total impact and costs for AI remain unknown, lawyers must consider the ethical
requirements of SCR 3.130(1.5); specifically, including the following:
 Costs incurred in learning about AI, in maintaining AI provided services, and keeping up to
date with changes in its use, should be considered like any other continuing legal education
expense, and a part of the lawyer’s overhead.
 Lawyers charging their clients on an hourly basis cannot submit inflated bills for hours not
actually spent on their case, and savings generated by using AI, like other technologies, should
be passed on to the client.
 Lawyers may request that their client reimburse them for the costs incurred in using AI
services, but only after first explaining the anticipated cost, and also obtaining the client’s
agreement to reimburse the attorney for the expense.
CONFIDENTIALITY OF CLIENT INFORMATION
There is no ethical duty more sacrosanct than the requirement that an attorney not reveal
information relating to a client, or the fact of the attorney’s representation of that client, without
the client’s informed consent. SCR 3.130(1.6) is clear: “A lawyer shall not reveal information
relating to the representation of a client unless the client gives informed consent, the disclosure is
impliedly authorized in order to carry out the representation or the disclosure is permitted ...” under
a specific exception to the Rule.24 Additional Rules extend this nondisclosure duty to information
provided to an attorney by a prospective client, 25 as well as to information obtained by the attorney
in the representation of a former client. 26 The nondisclosure duty is broad, inasmuch as “(t)he
confidentiality rule, for example, applies not only to matters communicated in confidence by the

21
374 B.R. 681 (Bankr. S.D. Iowa 2007) 374 B.R. 681.
22
Ibid, at page 683.
23
Id.
24
Paragraph (b) to SCR 3.130(1.6) creates exceptions to the disclosure prohibition in those circumstances
where the “... lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial
bodily harm; (2) to secure legal advice about a lawyer's compliance with these Rules...” or (3) to establish
a claim or defense on behalf of a lawyer and the client, or in defense of a criminal or civil charge made by
the client against the lawyer, or “(4) to comply with another law or a court order.”
25
See, SCR 3.130(1.8).
26
See, SCR 3.130(1.8(b)) and (1.9(c)(l)).

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client, but also to all information relating to the representation, whatever its source.” 27
It is well known that “AI is making it easier to extract, re-identify, link, infer, and act on
sensitive information about people’s identities, locations, habits, and desires. Al’s capabilities in
these areas can increase the risk that a client’s personal data could be exploited and exposed.” 28
To prevent or reduce this risk of disclosure, the attorney must ensure that the use and the retention
of confidential client information by an AI provider is secure and avoids confidentiality risks. In
order to confirm the confidentiality of client information, the attorney should understand how
generative AI products are being used and then not input any client information that lacks
reasonable and adequate security protections unless, of course, client consent is first obtained.
Some generative AI products utilize inputted information or uploaded documents such as
pleadings or contracts to train itself, or to share that information with third parties. Therefore, the
attorney should review the “terms of use” of any AI product and the provider’s disclaimers in order
to understand whether the AI provider shares inputted information with a third party or will utilize
the lawyer’s inputted information for its own purposes.
Hence, an attorney should take care that any information inputted into a generative AI
product does not identify the client or the nature of the representation. Historically, attorneys have
relied upon hypotheticals to discuss legal or factual issues relating to a client’s representation;
however, the use of hypotheticals is only permissible as long as there is no reasonable likelihood
that anyone will be able to determine who the client is or what the client matter involves. 29 The
sophistication of generative AI which allows the attorney to have near-human conversations by
asking questions with AI responding calls into question whether the use of a hypothetical can be
disguised sufficiently to avoid confidential client information from being disclosed.
There are GAI systems that promise that the provider will not send a client’s information
off-site, or host or share third party content. If that promise is confirmed in writing, then it may be
allowable to input the client’s confidential information with that provider. However, it still may
be difficult, or even impossible to determine whether client information has been kept confidential
and once the information has been disclosed it has not yet been judicially determined whether
sharing information with an AI program would render that information discoverable, and/or result
in waiving claims of attorney-client privilege. Because these questions are currently unanswered,
lawyers are advised to maintain a healthy dose of skepticism of AI programs and should proceed
with caution.30
Two final points on this issue: first, if the attorney intends to utilize AI and is concerned
that despite taking appropriate preventative measures confidential client information will be
inadvertently disclosed, then SCR 3.130(1.6) allows disclosure of client information if the client
gives “informed consent.”31 The attorney should discuss with the client the proposed use of AI,
the applications of AI to be utilized, the risks and benefits of the AI product, and fully explain

27
See, SCR 3.130(1.6), Comment (3).
28
President Joe Biden’s Executive Order on the Safe, Secure and Trustworthy Development and Use of
Artificial Intelligence dated October 22, 2023.
29
See, SCR 3.130(1.6), Comment (5).
30
The words of President Reagan: “trust but verify” come to mind – this is what we need to do.
31
See, SCR 3.130(1(e)) “Informed consent” denotes the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation about the material risks
of and reasonably available alternatives to the proposed course of conduct.

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privacy concerns. With the informed consent of the client, the attorney should be able to meet this
Rule’s ethical obligations. We recognize there are some states that are considering ethics rules
requiring clients to give advance permission before an attorney may use AI on their legal matters,
but at this time Kentucky does not have any similar pending rules.
Second, using AI may expose a host of cybersecurity threats to the law firm, including
phishing, social engineering, and malware. “We use ChatGPT differently than the way we use
other types of searches, and therefore any vulnerabilities in ChatGPT become exacerbated and are
much more likely to lead to the exposure of privileged information.” 32
DUTY TO COMPLY WITH COURT RULES WHEN USING AI
“A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or
fail to correct a false statement of material fact or law previously made to the tribunal by the
lawyer; (or) (2) fail to disclose to the tribunal published legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed
by opposing counsel..”33 Accordingly, attorneys have an ethical duty to ensure that legal
authorities presented to the Court are accurate. GAI tools are known to sometimes produce
erroneous and often fictitious responses to inquiries that may seem credible, called
“hallucinations.” Attorneys who use AI provider services like ChatGPT have a responsibility to
check their pleadings for accuracy in their references to both facts and legal citations. Citing non-
existent judicial opinions, false quotes and fake citations in filings with the court have caused the
judiciary to take notice, and in some instances the attorneys have been sanctioned for their
inaccuracy and misleading pleadings. Two New York lawyers were recently sanctioned after the
Court found they filed a brief that contained numerous fake, GAI case law citations, when they
later failed to “come clean” with the Court about their use.34 Since then several federal and
specialty courts, and at least one state court, have adopted rules requiring attorneys using AI
programs to review, and verify any computer-generated content, and then certify that fact to the
courts with their filings.35
In light of the everchanging nature of AI and the adoption of different court practice rules, 36
attorneys are reminded that they are responsible to understand the court rules and procedures to
competently represent a client in those courts in which they are practicing, including those rules
related to AI.37 The attorney should check, and keep abreast of any rules, orders or other court
procedures implemented in the jurisdiction in which the attorney is practicing that may require
additional certifications as it relates to filings prepared by utilizing GAI products.

32
Mark D. Rasch, lawyer, cybersecurity, and data privacy expert, quoted in “What cybersecurity threats do
generative AI chatbots like ChatGPT pose to lawyers?,” American Bar Association Journal (June, 2023).
33
SCR 3.130(3.3(a)).
34
Mata vs. Avianca, Inc., 2023 U.S. Dist. LEXIS 108263, 2023 WL 4114965 (S.D.N.Y. June 22,2023).
35
U.S. District Court for the Eastern District of Texas. U.S. District Judge Brantley Starr of the Northern
District of Texas is one of the first U.S. Judges to require lawyers to certify that they did not use AI to draft
their filings without a human checking their accuracy. In addition, the United States Court of Appeals for
the Fifth Circuit has pending a similar certification requirement, and notes that lawyers who misrepresent
their compliance with this certification could be sanctioned and have their filings stricken of record.
36
Utah has established rules concerning the use of GAI and restricts judicial officers and court employees
to using ChatGPT(version 3 or 4); Claude.ai(Beta); and Bard (Experiment) for all court-related work.
37
See, SCR 3.130(1.1).

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   If an attorney later discovers an inaccuracy, then the attorney is required to correct the

inaccuracy, and to notify the Court of any misleading statements. Without a doubt, if the Court
questions the attorney’s filings that include fake cases, the attorney must be candid with the Court
and explain the error. Failure to do so not only subjects the attorney to potential sanctions by the
Court but may also result in disciplinary action for the attorney for noncompliance with the Rules. 38
SUPERVISING ATTORNEYS’ RESPONSIBILITIES WHEN USING AI
SCR 3.130(5.1) requires a partner in a law firm, as well as an individual lawyer who
exercises managerial authority over others, to make “reasonable efforts to ensure that the firm has
in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules.”
Lawyers who have direct supervisory authority over another lawyer are similarly responsible to
ensure the other lawyer complies with the Rules.39 Having policies and procedures relating to the
use of AI in the law firm may reduce potential disclosure of confidential client information and
ensure that generative AI is being used appropriately. “AI systems keep challenging old
conceptions of things like security, privacy, and fairness. But at another level, they just reinforce
existing best practices.”40 These issues were discussed in KBA E-446 relating to cybersecurity and
confirmed that law firm partners, managers of attorneys, and any attorneys supervising other
attorneys are required to ensure that all of the firm’s attorneys, as well as nonlawyer assistants,
employees, or independent contractors who are under their supervision, comply with the Rules of
Professional Conduct. This requirement places an enhanced responsibility upon those managerial
attorneys to prescribe policies and procedures to reduce the risk of disclosure of confidential
information when using AI, as well as to explain the permissible uses, as well as the known risks
of AI.
The following comments of Florida Bar Ethics Opinion 24-1 are appropriate to this topic:
(A) lawyer must review the work product of a generative AI in situations similar to
those requiring review of the work of nonlawyer assistants such as paralegals. Lawyers
are ultimately responsible for the work product that they create regardless of whether
that work product was originally drafted or researched by a nonlawyer or generative
AI.
Functionally, this means a lawyer must verify the accuracy and sufficiency of all
research performed by generative AI. The failure to do so can lead to violations of the
lawyer’s duties of competence [Kentucky SCR 3.130(4.1)], avoidance of frivolous
claims and contentions [Kentucky SCR 3.130(3.1)], candor to the tribunal [Kentucky
SCR 3.130(3.3)], and truthfulness to others [Kentucky SCR 3.130(4.1)], in addition to
sanctions that may be imposed by a tribunal against the lawyer and the lawyer’s client.
The Committee does not intend to specify what AI policy an attorney should follow
because it is the responsibility of each attorney to best determine how AI will be used within their
law firm and then to establish an AI policy that addresses the benefits and risks associated with AI
products. The fact is that the speed of change in this area means that any specific recommendation
will likely be obsolete from the moment of publication. At the very least lawyers must take care

38
See, SCR 3.130(8.4).
39
See, SCR 3.130(5.l(b)).
40
“What cybersecurity threats do generative AI chatbots like ChatGPT pose to lawyers” by Matt
Reynolds, American Bar Association Journal (June, 2023).

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to address the use of any form of AI, what risk is associated with it, and what steps can be taken
to avoid release of client information. As a part of this process, it is appropriate to review the law
firm’s existing cybersecurity policies so as to take AI into consideration.
The establishment of policies and procedures to deal with AI is an important step in
meeting a lawyer’s ethical obligations but it is not the end of the lawyer’s duties. “All lawyers
must make sure that subordinate attorneys, interns, paralegals, case managers, administrative
assistants, and external business partners all understand necessary data and security practices and
the critical role that all parties play in ensuring the protection of client information.” 41 Creating a
culture of security and privacy of client information may be best attained through training everyone
on the law firm’s AI policies and focusing on human error and behavior. “Humans are ... involved
in more than 80% of data breaches, whether they’ve clicked on a phishing email or they’ve just
done something stupid.”42

                                        Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association
under the provisions of Kentucky Supreme Court Rule 3.530. This Rule provides that formal opinions are
advisory only.

41
KBA Ethics Opinion E-446, quoting Drew T. Simshaw in the American Journal of Trial Advocacy.
42
Sharon Nelson, president of Sensei Enterprises, as quoted in ABA Journal, supra at 4.

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