The following is proposed language for adoption, including proposed penalties. The conduct rule should be adopted together with a companion disciplinary enforcement provision.
Proposed Rule 1.5A — Competent and Efficient Use of Legal Technology
(a) Professional standard. A lawyer shall use reasonably available legal technology, including artificial intelligence, when the lawyer knows or reasonably should know that its competent use would materially reduce the client’s total cost or delay, or materially improve the accuracy, completeness, or usefulness of the legal work, while satisfying the duties of competence, confidentiality, and compliance with applicable law and court orders.
(b) Assessment of benefits. The lawyer shall evaluate the complete assignment, including preparation, verification, correction, technology expenses, and necessary human judgment. The assessment shall consider demonstrated performance on comparable tasks and the client’s objectives and resources. A lawyer shall maintain familiarity with relevant technology ordinarily available to competent practitioners in the lawyer’s field.
(c) Justified exceptions. A lawyer may decline a particular technology because of inadequate reliability, confidentiality risks that cannot reasonably be controlled, legal restrictions, disproportionate implementation costs, or an urgent deadline preventing safe implementation. An informed client preference for a lawful alternative may also justify that alternative if the resulting fee remains reasonable.
When declining technology materially affects cost or quality, the lawyer shall document the specific reason and explain the consequences to the client, ordinarily before incurring the additional expense.
(d) Prohibited motives. Preserving billable hours, satisfying billing quotas, protecting revenue from unnecessary labor, or general hostility to technology shall not justify declining a method that satisfies paragraph (a). A lawyer shall not manufacture unnecessary work or knowingly retain an inefficient method primarily to increase the client’s bill.
(e) Billing. Hourly charges shall reflect professional time actually and reasonably devoted to the matter. A lawyer shall not:
- Charge hypothetical hours eliminated by technology.
- Present automated processing time as human labor.
- Inflate review time to recover revenue lost through efficiency.
- Disguise ordinary overhead as an undisclosed client expense.
Fixed and contingent fees remain subject to Rule 1.5. Substantial reductions in required labor shall be considered with the other relevant fee factors. Technology expenses must be reasonable, accurately described, and disclosed before being incurred. Client agreement shall not validate an improper fee.
(f) Training. General education necessary to maintain technological competence shall be paid for by the lawyer or firm. Reasonable training costs for an unfamiliar tool specifically requested by the client may be charged only under an advance written agreement identifying those costs.
(g) Responsibility for quality. The lawyer remains responsible for the finished work. Appropriate professional review shall include verification of material factual assertions, cited authorities, and legal propositions, and correction of material errors or omissions. Required confidentiality safeguards and client consent shall be secured before protected information is submitted to a provider.
(h) Records and disclosure. The lawyer shall maintain accurate billing records and concise records of material decisions under paragraph (c). Preservation, discovery, confidentiality, privilege, and work-product obligations shall be applied to the particular materials. AI histories shall receive no automatic presumption of either protection or disclosure.
(i) Supervisory accountability. Managerial and supervisory lawyers shall establish reasonable procedures for compliance. A lawyer who orders or knowingly ratifies a violation shall be individually accountable. A managerial or supervisory lawyer who knows of a violation while its consequences can be avoided or mitigated and fails to take reasonable remedial action shall also be accountable.
Proposed disciplinary penalties
These are presumptive starting points, subject to findings concerning culpability, injury, and aggravating or mitigating circumstances.
| Established misconduct | Proposed presumptive penalty |
|---|---|
| First, isolated negligent violation; little or no injury; prompt correction; low risk of repetition | Private admonition and required remedial education |
| Negligent violation causing material avoidable expense or a material quality defect | Public reprimand and supervised probation for up to 12 months |
| Knowing or reckless violation causing material injury or a substantial risk of injury | Suspension for 6–12 months |
| Intentional false billing, deliberate concealment of overcharges, or repeated knowing violations | Suspension for 1–3 years |
| Systematic dishonest exploitation causing serious injury, theft of client funds, or repeated intentional abuse demonstrating unfitness after prior discipline | Disbarment |
For this provision, recklessness means conscious disregard of a substantial and unjustifiable risk that the conduct violates Rule 1.5A.
Financial redress. In addition to discipline, the adjudicator shall order cancellation of unpaid improper charges and repayment of improper fees already collected, with interest at the adopting jurisdiction’s legal judgment rate from the date of payment. Additional fee disgorgement may be ordered for serious dishonesty. The amount shall be established through evidence of the actual assignment and legitimate services provided.
Aggravating factors. Dishonest financial motives, multiple affected clients, vulnerable clients, prior discipline, false records, obstruction, retaliation, and refusal to make ordered repayment shall support increased sanctions.
Mitigating factors. Prompt voluntary correction, cooperation, a clean disciplinary history, and effective remedial measures may support reduced sanctions. Repayment shall not automatically terminate disciplinary proceedings.
Enforcement conditions. Orders may require education, independent billing audits, supervised practice, and reimbursement of reasonable disciplinary proceeding costs. Public disciplinary decisions shall identify the lawyer, misconduct, financial redress, and reasons for the sanction while protecting client information.
Proof and procedure. Disciplinary counsel shall prove misconduct and the required culpability by clear and convincing evidence. The lawyer shall receive notice, an opportunity to challenge evidence, impartial adjudication, and review. Decisions shall be assessed using information reasonably available when the work occurred. Nonuse of AI or an adverse case outcome alone shall not establish misconduct.
Effective date. The new obligations shall apply prospectively beginning 180 days after adoption. Existing duties concerning competence, confidentiality, truthful billing, and lawful fees remain enforceable during the transition.
This proposal extends existing ABA guidance on AI competence and actual-time billing. Its sanction structure draws on ABA disciplinary enforcement provisions, which include restitution, fee disgorgement, reprimand, suspension, and disbarment; the specific triggers and periods above are proposed additions. americanbar.org
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