Draft a firm supervision protocol for generative tools in litigation
Key facts
- Human involvement
- YellowClose supervision
- How AI is used
- From the decisions the lawyer has already made, draft a protocol that names the permitted tools, the information that must not be entered, and the lawyer who reviews the output before it is filed. Do not adopt the protocol.
- What the lawyer must review
- ABA Model Rule 1.1 provides that a lawyer shall provide competent representation, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. ABA Model Rule 5.1 requires a lawyer with managerial authority to make reasonable efforts to ensure the firm has measures giving reasonable assurance that all lawyers conform to the Rules of Professional Conduct, and requires a lawyer with direct supervisory authority to make reasonable efforts to ensure that the other lawyer conforms. A lawyer is responsible for another lawyer's violation if the lawyer orders or ratifies the specific conduct, or knows of it in time to avoid or mitigate the consequences and fails to take reasonable remedial action. ABA Formal Opinion 512 (29 July 2024) applies a lawyer's duties of competence, confidentiality, and supervision to generative artificial-intelligence tools. Federal Rule of Civil Procedure 11 leaves the lawyer who signs or later advocates a paper responsible for the inquiry reasonable under the circumstances. The protocol is adopted by the firm, not by the tool.
- Written for / version
- United States versionUS
Who does what
| Role | What they do |
|---|---|
| Assistance | Potential support includes preparing preliminary structure or wording and identifying points for review. Confirm the tool’s capability and permitted scope. |
| Lawyer | Set the scope, supervise the work closely, verify every part relied on, resolve omissions and exceptions, and approve the exact output. |
Checklist
- Open each relied-on authority independently. Confirm its existence, current status, proposition and any quotation or pinpoint reference.
- Confirm that the actual tool, feature and processing terms permit use of this information, including access, retention, training and disclosure conditions.
- Confirm the output against the client’s instructions and the complete relevant source material, including omissions or contradictions.
- Resolve exceptions and record the responsible lawyer’s approval of the exact output and intended use.