New York has developed one of the most comprehensive frameworks for AI ethics in legal practice. In April 2024, the New York State Bar Association (NYSBA) released its Task Force on Artificial Intelligence report, and the NYC Bar Association issued Formal Opinion 2024-5. Together, these documents provide extensive guidance for New York attorneys using AI.
Key Guidance Documents#
NYSBA Task Force Report (April 2024)#
The nearly 90-page report is the most comprehensive document provided by any state bar association regarding AI use:
Scope: Examines (1) evolution of AI and generative AI; (2) benefits and risks; (3) impact on the legal profession; (4) legislative overview and recommendations; (5) proposed guidelines.
Approval: Adopted by NYSBA House of Delegates on April 6, 2024.
Full Report: NYSBA Task Force Report (PDF)
NYC Bar Formal Opinion 2024-5#
The NYC Bar Professional Ethics Committee issued formal guidance on generative AI use:
Focus: Ethical obligations of New York lawyers and law firms using generative AI
Approach: General guidance recognizing that AI tools are rapidly evolving
Full Opinion: NYC Bar Opinion 2024-5
The Competence Imperative#
This statement implies that avoiding AI might itself be an ethical violation, a provocative position that goes beyond other state guidance. While not a binding rule, it signals New York’s view that technology competence is essential to modern legal practice.
Implications:
- Attorneys should develop AI literacy
- Blanket refusals to use AI may be questioned
- Understanding AI capabilities and limitations is part of competence
Core Ethical Obligations#
Competence (Rule 1.1)#
New York emphasizes that competent AI use requires:
- Understanding the technology sufficiently to assess its outputs
- Recognizing limitations including hallucination risk
- Verification of all outputs before use in client matters
- Ongoing education as AI capabilities evolve
Confidentiality (Rule 1.6)#
Key Concerns:
- Data input to AI systems may be stored, accessed, or used for training
- Third-party AI platforms may not have adequate security protections
- Privilege could be waived if confidential information is improperly disclosed
Protective Measures:
- Assess AI platform security and data handling policies
- Consider enterprise solutions with enhanced protections
- Obtain client consent when inputting confidential information
- Document confidentiality safeguards
Communication (Rule 1.4)#
The Task Force advises disclosure of AI use to clients:
- Inform clients when AI tools are employed in their cases
- Explain how AI is being used and any limitations
- Discuss AI use in engagement letters
- Update clients if AI use changes
Supervision (Rules 5.1, 5.3)#
Attorneys and firms have supervisory obligations:
- Handle AI properly - attorneys must ensure paralegals and employees use AI appropriately
- Establish policies - firms should have written AI use guidelines
- Train staff - provide education on ethical AI use
- Review outputs - supervise all AI-generated work product
New York Rules of Professional Conduct Implicated#
| Rule | Obligation | AI Application |
|---|---|---|
| Rule 1.1 | Competence | Understand AI; verify all outputs |
| Rule 1.4 | Communication | Disclose AI use to clients |
| Rule 1.5 | Fees | Reasonable fees; AI efficiency savings |
| Rule 1.6 | Confidentiality | Protect privilege; assess AI security |
| Rule 3.3 | Candor | Verify AI content before court submission |
| Rule 5.1 | Partner/Supervisory Duties | Establish AI policies; supervise |
| Rule 5.3 | Nonlawyer Assistance | Supervise AI use by staff |
| Rule 8.4 | Misconduct | No deceptive AI use |
Federal Court AI Orders in New York#
Southern District of New York#
Several judges in the SDNY have addressed AI:
Mata v. Avianca (Judge P. Kevin Castel):
- The landmark AI hallucination case
- $5,000 sanctions for attorneys who cited fake ChatGPT-generated cases
- Established that verification is required regardless of AI tool used
United States v. Cohen (Judge Jesse Furman):
- Declined sanctions where no subjective bad faith found
- Distinguished that sanctions require more than negligent AI use
- Still emphasized attorney responsibility for all filings
Eastern District of New York#
Individual judges may have standing orders. Attorneys should check for AI disclosure requirements when assigned to cases.
NYSBA Four Main Recommendations#
The Task Force made four key recommendations:
1. Adopt Guidelines#
NYSBA should adopt AI/Generative AI guidelines and establish a standing committee for periodic updates.
2. Focus on Education#
Prioritize education over legislation, focus on educating judges, lawyers, law students, and regulators to understand AI so they can apply existing law.
3. Identify Risks for New Regulation#
Legislatures should identify risks not addressed by existing laws and determine whether AI should be regulated comprehensively or industry-by-industry.
4. Examine the Law’s Role#
The rapid advancement of AI requires examining law as a governance tool, including expressing social values, protecting against risks, and stabilizing society.
AI & Emerging Technologies Committee#
Following the Task Force report, NYSBA established the AI & Emerging Technologies Committee (AIETC):
Mission: Examine legal, social, and ethical impact of AI, generative AI, agentic AI, and other emerging technologies on the legal profession
Focus Areas:
- Access to justice implications
- Legal regulations
- Privacy preservation
- Global community impact
AI Disclosure Requirements in New York#
New York’s approach emphasizes client communication:
Client Disclosure:
- Task Force advises disclosing AI use to clients
- Include AI provisions in engagement letters
- Discuss limitations and safeguards
Court Disclosure:
- No uniform state court requirement
- Individual federal judges may require disclosure
- Always verify content regardless of disclosure rules
Practical Compliance Steps for New York Attorneys#
For Competence:
- Develop AI literacy, understand how tools work
- Recognize AI is part of modern legal competence
- Stay current on AI developments and risks
- Consider whether your practice needs AI integration
For Confidentiality: 5. Assess AI platform security and data policies 6. Consider enterprise solutions with enhanced protections 7. Obtain client consent for confidential data input 8. Document your confidentiality safeguards
For Communication: 9. Disclose AI use to clients as recommended 10. Include AI provisions in engagement letters 11. Explain AI limitations and verification processes 12. Update clients if AI use changes
For Verification: 13. Independently verify all citations 14. Check quotes against original sources 15. Shepardize/KeyCite all authority 16. Review for logical consistency and accuracy
For Supervision: 17. Establish written firm AI policies 18. Train all lawyers and staff on AI use 19. Review AI-generated work product 20. Ensure compliance with ethical obligations
Mata v. Avianca: The Landmark Case#
The case that launched the AI ethics conversation occurred in the SDNY:
Facts:
- Attorneys used ChatGPT for legal research
- ChatGPT generated six completely fabricated cases
- When asked if citations were real, ChatGPT affirmed they were
Sanctions:
- $5,000 fine against attorneys and firm
- Required letters to falsely-cited judges
- Found subjective bad faith for failing to verify
Key Lesson: Judge Castel emphasized that “there is nothing inherently improper about using a reliable artificial intelligence tool for assistance,” but “existing rules impose upon lawyers a duty to ensure the accuracy of their filings.”
Frequently Asked Questions#
Does New York require disclosure of AI use to clients?
Is it unethical to refuse to use AI in New York?
What happened in Mata v. Avianca?
How should New York attorneys protect client confidentiality with AI?
Resources#
- NYSBA Task Force Report (PDF) - Comprehensive 90-page report
- NYC Bar Formal Opinion 2024-5 - NYC Bar guidance
- NYSBA AI & Emerging Technologies Committee
- New York Rules of Professional Conduct
- ABA Formal Opinion 512 - National guidance on attorney AI use
- AI Hallucinations in Courts - Sanctions cases and verification requirements
Questions About AI Ethics Compliance in New York?
New York's comprehensive framework, including the provocative suggestion that refusing AI may itself raise competence concerns, requires careful attention. Understanding NYSBA guidance and the Mata v. Avianca precedent is essential for New York attorneys integrating AI into their practice.
Consult a Legal Ethics Attorney