Steve Leben (University of Missouri at Kansas City School of Law) has posted AI, Confidentiality, and the Stratified Legal Profession on SSRN. Here is the abstract:
Solo practitioners, small-firm lawyers, and self-represented litigants face a stratified AI market in which they have access only to consumer-level products; large firms can get enterprise models with greater security protocols. But legal-ethics guidance often treats enterprise-grade procurement as the implicit floor for ethics-rule compliance. This commentary argues that existing rules permit substantially more AI use than that guidance suggests. Rule 1.6—the legal-ethics rule on confidentiality—is a reasonableness rule, not a zero-risk prohibition. ABA ethics advisory opinions over the past quarter century establish that bounded third-party access is compatible with confidentiality such that Rule 1.6(a)’s implied-authorization principle should cover a lawyer’s ordinary AI uses. Comment [18] to Rule 1.6 provides a five-factor framework, including cost, difficulty, and impact on representation, that can be used to navigate use of AI technology with appropriate regard for confidentiality. The commentary closes with implications for self-represented litigants navigating the same technology without any ethics framework to guide them. If legal-ethics rules setting minimum standards are interpreted to require security architecture available only to large institutions, the rule of reason becomes a rule of exclusion.
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