When Should a Lawyer Tell a Client That AI Was Used?

There is no useful one-word answer to whether lawyers must disclose AI use. It depends on what the system does, what information it receives, what the client has asked for, and which court or jurisdiction governs the work.

That can sound frustratingly vague. In practice, a few questions make the decision much easier.

First ask whether client information leaves your control

ABA Formal Opinion 512 explains that some uses of self-learning generative AI may require the client’s informed consent before information relating to the representation is entered. A general sentence buried in an engagement agreement may not be enough. Informed consent requires an understandable explanation of the relevant risks and reasonable alternatives.

This is broader than privilege. Rule 1.6 covers information relating to the representation, including facts that may be public or unremarkable when viewed alone.

Before putting matter information into a tool, find out whether it retains prompts or files, uses customer content for training, permits provider personnel or subprocessors to access it, and offers contractual protections for the firm’s account. If you cannot answer those questions, do not assume a paid subscription makes the use confidential.

Then ask how much the AI affects the representation

Not every use deserves a client conference. A lawyer ordinarily does not catalogue every spelling checker, search feature, or internal drafting aid. Disclosure becomes more important as AI takes on a more material role.

Consider discussing the use when the system will:

• analyze confidential or unusually sensitive material;
• make a recommendation that materially shapes strategy or advice;
• communicate directly with the client or a third party;
• perform work the client reasonably expects the lawyer personally to perform;
• create a risk the client would likely consider important; or
• materially change the fee or staffing arrangement.

The conversation should describe the actual use, not AI in the abstract. “We may use technology to assist us” tells a client very little. “We propose to use an approved system to compare the contracts you provided, then a lawyer will check every cited clause and make the final recommendation” is concrete enough to discuss.

Check the client’s instructions

Some clients prohibit particular tools, require advance approval, restrict where data may be processed, or impose security terms through outside-counsel guidelines. Those instructions may be stricter than the baseline ethics rules.

A client may also have a good business reason to decline even when a lawyer considers the risk manageable. The client could be protecting trade secrets, complying with a regulatory obligation, or avoiding disclosure to a particular provider. Record the decision and any limits that were agreed.

Courts may have their own rule

Judges and courts have taken different approaches. Some require a certification, disclosure, or verification related to AI-assisted filings. Others rely on existing duties of candor and competence without a separate filing statement.

Check local rules, standing orders, judge-specific procedures, and filing forms for the court in question. Do not reuse a disclosure conclusion from one matter without checking the next forum. A certification can itself create risk if the signer has not performed the review it describes.

Whatever the local rule says, every quotation, citation, factual assertion, and legal proposition in a filing still needs appropriate verification. Telling the court that AI was used does not cure an inaccurate filing.

Fees deserve a separate conversation

AI-assisted efficiency does not create extra billable hours. Under an hourly arrangement, bill the time actually spent on the matter. If the firm intends to charge for an AI service, use an alternative fee, or price work partly on value rather than time, explain the arrangement clearly and make sure the total fee is reasonable.

This is not just an accounting point. A client who learns that a two-hour invoice represented twenty minutes of work may feel misled even if the final document was excellent.

A simple decision record

For a material use, record five things in the matter file:

1. the tool and account type;
2. the information provided to it;
3. the task it performed;
4. the review completed by the lawyer; and
5. any client consent, court disclosure, or fee discussion.

The record need not include every exploratory prompt. It should be enough for the lawyer to explain the decision later without relying on memory.

A short client explanation

Plain language works best:

We would like to use an AI-assisted tool for a limited part of this matter. It will help us organize and compare the documents you supplied. A lawyer will review the source documents, verify the material statements, and make all legal decisions. Before we use it, we want to explain how the provider handles information, the safeguards in place, and the available alternative.

That wording is only a starting point. The details must match the tool and the work, and local rules may require more.

The real question is not whether the letters “AI” appeared somewhere in the workflow. It is whether the client, court, and lawyer understand who received the information, who made the decision, how the work was checked, and how the client was charged.

Primary references

• ABA Formal Opinion 512: Generative Artificial Intelligence Tools
• U.S. Bankruptcy Court, Southern District of California: Artificial Intelligence Certification

This article offers general information, not legal or ethics advice. Check the rules and opinions that apply in your jurisdiction.