Bar proposes ethics opinion on generative AI

The Virginia State Bar is proposing a legal ethics opinion on how attorneys can appropriately bill for work done with the assistance of generative artificial intelligence.

The opinion, proposed Legal Ethics Opinion 1901, discusses how attorneys can charge reasonable fees when attorneys use generative AI, which can save attorneys time on tasks.

“When evaluating fee reasonableness for a lawyer who uses generative AI or other productivity-enhancing tools or experience, Rule 1.5 does not equate reduced time with proportionately reduced fees,” the opinion concludes. “Such an approach would fail to account for the investment lawyers make in developing AI expertise and the continuing value of their professional judgment.”

Citing Rule 1.5(a) of the Rules of Professional Conduct, the opinion states that “it would not be reasonable to conclude that a lawyer is ethically required to reduce or limit the fee” because of time saved by using a generative AI tool.

“The lawyer’s judgment in determining when and how to deploy AI tools, and the expertise needed to critically evaluate AI-generated content, represent valuable services for which the lawyer reasonably can be compensated,” the opinion adds.

Proposed Legal Ethics Opinion 1901 differs from multiple other bars, including the American Bar Association, which concluded in 2024 that it may be unreasonable for an attorney to charge the same flat fee if a generative AI tool is used.

The North Carolina Bar stated in a 2024 opinion that a lawyer “may not inaccurately bill a client based upon the ‘time-value represented’ by the end product should Lawyer have not used AI when providing legal services.”

The VSB’s proposed opinion disagreed with the conclusions drawn by these opinions.

“Any legal fee, regardless of the basis or type of fee, must be reasonable considering all the factors identified in Rule 1.5(a), but the time spent on a task or the use of certain research or drafting tools should not be read as the preeminent or determinative factor in that analysis,” the opinion states.

The proposed ethics opinion can be found on the bar’s website, vsb.org.

Persons who want to submit public comment on proposed Legal Ethics Opinion 1901 can submit their comments to VSB Executive Director Cameron M. Rountree at [email protected] by May 7.