California is proposing new comments to the Rules of Professional Conduct to deal with artificial intelligence. These edits to the comments are the result of numerous decisions where lawyers used AI to create briefs and memoranda without checking to see if the citations were, in fact, real ones. Telling lawyers not to do this has not worked. California makes another attempt by proposing new comments to the Rules of Professional Conduct.
Summary: California Proposed Amended Rules on Artificial Intelligence
The California State Bar is proposing amendments to six Rules of Professional Conduct to address lawyers’ use of artificial intelligence. The changes are targeted additions to existing rules rather than wholesale rewrites. Here is a rule-by-rule breakdown:
Rule 1.1 — Competence
The core rule text is unchanged. Two new comments are added:
- Comment [1] expands the existing duty to keep abreast of legal developments to explicitly include AI, requiring lawyers to understand the “benefits and risks” of AI tools.
- Comment [2] (new) requires lawyers to independently review, verify, and exercise professional judgmentover any AI-generated output used in client representation.
Rule 1.4 — Communication with Clients
Again, the rule text is unchanged. A new Comment [5] requires that when AI use presents a significant risk or materially affects the scope, cost, manner, or decision-making of a representation, the lawyer must communicate sufficient information about that AI use to allow the client to make informed decisions. The duty is contextual — lawyers must assess novelty of the technology, associated risks, scope of representation, and client sophistication.
Rule 1.6 — Confidentiality
A new Comment [2] significantly expands the definition of “reveal” as it applies to confidential information. Inputting client data into an AI tool now constitutes a potential disclosure of confidential information if it creates a material risk that the information could be accessed, retained, or used by the system or other users inconsistently with the duty of confidentiality. This is perhaps the most practically significant amendment.
Rule 3.3 — Candor Toward the Tribunal
A new Comment [3] directly addresses the problem of AI-generated legal citations — a clear response to high-profile incidents of lawyers submitting fabricated AI-generated case citations. It states that the duty of candor requires lawyers to verify the accuracy and existence of all cited authorities, including those generated or assisted by AI, before submission to any tribunal.
Rule 5.1 — Responsibilities of Managerial and Supervisory Lawyers
Comment [1] is amended to add governance of AI use to the list of internal policies that managing lawyers must implement. Firm-wide AI policies are thus now treated as a component of a manager’s baseline supervisory obligations under the Rules.
Rule 5.3 — Responsibilities Regarding Nonlawyer Assistants
The comment is amended to require that lawyers supervising nonlawyer staff provide instruction on AI use in the provision of legal services, alongside other ethical obligations. This is particularly relevant given the growing use of AI tools by paralegals and other support staff.
Key Takeaways
All amendments are comment-level additions — the black-letter rule text is largely preserved. Taken together, the proposed rules create an integrated framework: lawyers must understand AI (1.1), supervise its use (5.1, 5.3), protect client data when using it (1.6), disclose significant AI use to clients (1.4), and verify AI-generated legal authority before filing (3.3). Non-compliance with any of these obligations could form the basis for a disciplinary proceeding.
My comment: We all make mistakes. You should check any work that has your name on it for accuracy, even work by trusted colleagues. There is no reason to embarrass yourself by submitting a brief with false citations. If you screwed up, call me and I can often help you clean up the mess.
Ed Clinton, Jr.