In re Amendments to Article V, Rule 1.1 of the Supreme Court Rules (Professional Conduct) and Adoption of Interim Generative AI Guidelines

_____________________________ Lynch Prata, J.

_____________________________ Long, J.

/s/

/s/

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INTERIM GUIDELINES FOR THE ETHICAL USE OF GENERATIVE AI BY

RHODE ISLAND LAWYERS

Artificial intelligence has long been a feature of modern legal practice. Tools such as spell and grammar checkers, predictive typing, computer-based legal research, and e- discovery programs represent well-known and noncontroversial uses in most cases. The advent of generative artificial intelligence ("GAI") changes this calculus, however, because unlike preexisting artificial intelligence tools which perform discrete, repetitive tasks according to in-built programming, GAI tools independently produce original content such as text, audio, and video in a far more dynamic and sophisticated manner. These novel capabilities offer risk and reward for the practitioner in equal measure, promising the opportunity for greater output and efficiency but raising distinct ethical concerns in the process.

The use of GAI does not change the ethical responsibilities of lawyers, as was true with the introduction of computers and the internet. The following guidelines are intended to provide Rhode Island lawyers with direction and assistance for using GAI tools consistent with their duties and responsibilities under Article V of the Supreme Court Rules, the Rhode Island Rules of Professional Conduct. These guidelines offer a general, non-comprehensive rubric against which lawyers may measure their GAI use against their ethical obligations under the Rules of Professional Conduct.

The Supreme Court recognizes that GAI will continue to evolve quickly, and it expects that these guidelines may as well.

Lawyers with specific questions related to GAI use should request an advisory opinion from the Supreme Court's Ethics Advisory Panel.

Rule 1.1. Competence.

Rule 1.1 requires a lawyer to provide "competent representation to a client," with competence measured by "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Comment [6] to Rule 1.1 was recently amended by our Supreme Court to clarify that competent representation also includes the duty to "keep abreast of . . . the benefits and risks associated with existing and developing technology . . . ." Although this language does not demand lawyers adopt or use any particular technology such as GAI, it does require them, at a minimum, to remain aware of the nature, capabilities, applications, and limitations of such tools. To do otherwise may result in a violation of the duty of competency as GAI use continues to propagate throughout the legal industry. The widespread adoption of email represents an illustrative example of this principle in action. Once a novel, emerging technology, email quickly afforded lawyers the ability to work much more efficiently than using regular mail, eventually becoming ubiquitous in legal practice and establishing new expectations vis-à-vis the contours of competent representation. Given the fast pace of its development and growth, GAI may follow a similar path. And GAI, while it has the potential to automate routine tasks and enhance legal research, is known to hallucinate, fabricating responses that look legitimate to lawyers, like using fictitious cases. Lawyers must ensure that

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using GAI meets the duty to provide competent representation while also being cautious of its risks.

Rule 1.3. Diligence.

Rule 1.3 imposes a duty on lawyers to "act with reasonable diligence and promptness in representing a client." The Commentary to Rule 1.3 clarifies that this duty of diligence requires acting with dedication and commitment to the client's matters and interests and with zeal in advocating on the client's behalf, despite opposition, obstruction, or personal inconvenience to the lawyer.

Lawyers may find that adopting GAI tools enhances their ability to serve their clients. As such, they can integrate GAI tools into their practices to the extent they deem necessary or advantageous in the discharging their responsibilities. However, lawyers should not outsource so much of their practice to GAI tools that doing so dilutes their dedication and attention to clients and their matters and interests incommensurate with their duties under Rule 1.3.

Rule 1.4. Communication.

Rule 1.4 addresses a lawyer's duty to communicate with his or her clients, including the responsibility to "reasonably consult with the client about the means by which the client's objectives are to be accomplished." Rule 1.4(a)(2). It also includes the duty to "keep the client reasonably informed about the status of the matter," "promptly comply with reasonable requests for information," and "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Rules 1.4(a)(3), (a)(4), and (b). Comment

[1] to Rule 1.4 explains that these obligations are "necessary for the client effectively to participate in the representation . . . to promote more effective representation . . . [and to ensure that] the client [has] an understanding of the nature of the lawyer-client relationship . . . ."

As with Rule 1.1, this language does not affirmatively obligate lawyers to inform their clients every time they utilize GAI tools during a given representation. Rather, lawyers should communicate their GAI use to their clients when doing so advances the purposes of Rule 1.4. Relevant considerations include, but are not limited to, the significance of the GAI tool to accomplishing the task at hand, the importance of the task to the representation as a whole, the extent to which the client's knowledge of the lawyer's GAI use will advance the client's understanding of the representation, and the extent to which the client's knowledge of the lawyer's GAI use informs the client's evaluation of or confidence in the lawyer's work. Notwithstanding, lawyers who have chosen to integrate GAI tools into their everyday practices to supplement substantive legal work or as more than a work supplement should consider disclosing such use to clients in a retainer or engagement agreement at the outset of the representation. This proactive disclosure will ensure the client understands the full scope of the lawyer's GAI activities before conducting any substantive work. A lawyer must certainly disclose the use of GAI when a client asks, or when he or she enters client information into a GAI system. See Rule 1.6.

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Rule 1.5. Fees.

Rule 1.5 governs lawyers' fees and expenses. Pursuant to Rule 1.5(a), lawyers' fees must be reasonable under the circumstances. A non-exhaustive list of considerations for determining the reasonableness of a fee includes, but is not limited to, "the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly." Rule 1.5(a)(1). Rhode Island law permits hourly, fixed, and/or contingent fee arrangements.

Under Rule 1.5(b), a lawyer must communicate to the client the basis upon which he or she shall charge for fees and expenses prior to or within a reasonable time after commencing the representation. This must be accomplished in writing, via a fee agreement, engagement letter, or other suitable document. It should set forth, at a minimum, "the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation."

Rule 1.5, Comment [2].

GAI tools offer the promise of increased efficiency and work capacity, much like the shift from books to computers for legal research. However, it is critical to remember that a lawyer may only charge for the actual time spent on a task. For example, if a GAI tool allows a lawyer to provide a legal service in one hour instead of the usual two, the billable time would be one hour. Equally important is the need for fixed or contingent fees to accurately reflect the value of the work provided, as charging otherwise could lead to an unreasonable fee. Charging for GAI-related expenses falls within the same rubric. Comment [1] to Rule 1.5 explains with respect to expenses that "[a] lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer." Accordingly, a lawyer may not charge a client for the expenses associated with operating a GAI tool used for everyday legal work but, rather, must treat such costs as office overhead because they are akin to routine expenses for rent, utilities, productivity software, and malpractice insurance. The reasonable out-of-pocket costs associated with obtaining access to specialty GAI tools which the lawyer does not regularly use may be charged to a client, by contrast, when requested by the client or when necessitated by the nature of the representation.

Finally, a lawyer may not charge a client for the costs relating to GAI training or learning how to use a particular GAI tool due to the lawyer's ongoing duty of competence. However, the lawyer may charge for the reasonable cost of learning how to operate a specific GAI tool requested by the client in furtherance of the representation.

Rule 1.6. Confidentiality.

Pursuant to Rule 1.6, a lawyer must treat as confidential all information related to a representation, regardless of source, unless the client gives his or her informed consent to disclosure, disclosure is impliedly authorized to carry out the representation, or a recognized

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exception applies. "The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance." Rule 1.6, Comment [1]. These duties also extend to former and prospective clients as well. See Rules 1.9 and 1.18.

The market is replete with GAI tools of many kinds, some advertised for general use and others intended specifically to serve particular industries like law. Moreover, some GAI tools are open in that they store the information input by users and the outputs produced by the tool. Other models operate using a closed system that does not store the information input or generated by the tool. Before using any GAI tool for legal work, a lawyer should read and understand the tool's Terms of Use, privacy policy, and/or related policies to ascertain such important facts as whether and to what extent the tool preserves the confidentiality and security of information, whether such obligations are enforceable, whether the lawyer is to be notified of a data breach or other security event, and whether the tool retains input information after the discontinuation of services. This understanding is crucial to ensure the lawyer's compliance with Rule 1.6 and to protect client information. Consultation with technology professionals may also be necessary to fully understand a tool's nature. This will ensure the lawyer does not utilize GAI tools which may store, disclose, or otherwise permit access to input client information by individuals outside the lawyer's firm or those inside the firm who should not have such access. It will also allow the lawyer to ascertain the tool's security defenses and the risk of possible data breaches.

Rules 1.7 and 1.10. Conflicts of Interest.

Lawyers are prohibited from representing a client when the representation involves a concurrent conflict of interest as defined in Rule 1.7(a), unless one or more of the exceptions enumerated in Rule 1.7(b) applies. When lawyers are associated in a firm, Rule 1.10(a) operates to extend a concurrent conflict of interest faced by one lawyer to all lawyers in the firm unless certain exceptions apply.

One remedy to cure the presence of a concurrent conflict of interest among the members of a firm is to screen the affected lawyer off from knowledge of or participation in the matter and apportioning him or her no part of the fee earned from the representation. Requirements for screening procedures are set forth in Rule 1.0(k) and include "the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law."

When enacting such procedures, the implementing lawyer or lawyers must ensure that whatever GAI tools the firm uses are included such that the screened lawyer cannot access, inadvertently or otherwise, client information to which he or she should not have access. See also Rule 1.6.

Rule 1.18. Duties to Prospective Clients.

Rule 1.18 sets forth a lawyer's responsibilities to prospective clients, defined as those persons who discuss with a lawyer the possibility of forming a lawyer-client relationship with

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respect to a matter. See Rule 1.18(a). A lawyer's responsibilities to a prospective client include prohibitions on representing clients with interests materially adverse to those of the prospective client in the same or a substantially related matter, or revealing information learned from a prospective client except as permitted under Rule 1.9. See Rules 1.18(b) and (c). These restrictions apply even when no lawyer-client relationship ensues from the parties' initial discussions.

One fast-emerging GAI tool marketed to lawyers and law firms is a website chatbot or public-facing interactive GAI interface or "agent" that can engage with and/or screen site visitors in real time. These tools offer the ability to track and handle site traffic in a far more organized and dynamic way than traditional website analytics programs, potentially leading to increased business for the lawyer or firm without the need for human input. The impersonal nature of such communications does not lessen a lawyer's duties to persons seeking to potentially form a lawyer-client relationship, however. He or she owes such persons the same duties under Rule 1.18 as those with whom he or she interacts in person. Moreover, use of such tools may engender additional potential risks such as misrepresentation of the lawyer's services, the unintended acquisition of confidential information from a potential client, or the inadvertent creation of an attorney/client relationship.

Rule 2.1. Advisor.

Rule 2.1 obligates lawyers to "exercise independent professional judgment and render candid advice" when representing a client. The Commentary to Rule 2.1 makes clear that such advice may be given on purely legal grounds but may also stray into moral, ethical, social, political, economic, and other relevant areas as well. Whatever the subject, lawyer advice must be honest, candid, and based upon the lawyer's training, expertise, and experience. Given their complexity, GAI tools may provide lawyers with a touchstone for investigating and responding to client inquiries and problems. While a lawyer may reasonably consult a GAI tool in the same way he or she would study a legal treatise, query a database like Westlaw or LexisNexis, or question an outside subject-matter expert, he or she should not substitute GAI output for his or her own advice. To do so would undermine the lawyer's duty to render candid guidance based upon his or her "independent" judgment and potentially call his or her competence and diligence into question. See Rules 1.1 and 1.3.

Rules 3.1 and 3.3. Meritorious Claims and Contentions and Candor Toward the Tribunal.

Rules 3.1 and 3.3 pertain to a lawyer's ethical duties to the courts as well as clients during litigation and other proceedings. Rule 3.1 requires, in part, that a lawyer "not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." Rule 3.3(a) establishes that a lawyer cannot knowingly make a false statement of fact or law to a tribunal or fail to correct a material false statement of fact or law previously made to a tribunal, fail to disclose controlling authority to a tribunal adverse

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to the lawyer's position, or offer false evidence. Related Rules include Rule 4.1, which prohibits a lawyer from making a false statement of material fact or law to a third person, and Rule 8.4(c), which states that it is misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." These prohibitions apply to intentional as well as unintentional statements and actions.

It is important to remember that GAI tools, while helpful, are not without risks. As noted in the context of Rule 1.1 and competency, GAI tools are prone to hallucinations that produce false or fictitious information. In the legal context, GAI tool hallucinations may encompass citations to nonexistent or inapposite cases, inaccurate or misleading analysis of authority, and the inclusion or advocation of inapposite or unreliable arguments or positions. GAI tools have also produced outputs that include, endorse, or suggest unfair stereotypes, emphasize prejudices, or display biases. These risks underscore the need for caution and vigilance when using GAI tools in legal work.

Therefore, the role of a lawyer in using GAI tools is not just to rely on their outputs but to critically review and verify them. Before submitting or filing any documents or other work product created by, with, or through a GAI tool, a lawyer must review all such outputs for accuracy and correctness, verify citations and statements of fact or law, fix errors and misstatements, and revise false or misleading arguments and positions. This diligence is crucial to ensure the authenticity, factual accuracy, and absence of manipulation or misrepresentation in any GAI-produced, processed, or enhanced evidence or other exhibit upon which the lawyer relies and, by extension, help mitigate the risks of using GAI tools in legal work.

Rules 5.1 and 5.3. Lawyer Supervisory Responsibilities.

A lawyer's supervisory responsibilities are governed by Rules 5.1 and 5.3. Partners, managers, and supervisory lawyers must both make reasonable efforts to institute measures ensuring the lawyers and non-lawyer employees and independent contractors under their supervision conform to the Rules of Professional Conduct and supervise such persons to ensure their compliance with the Rules. Recognized compliance measures include, but are not limited to,

"those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised." Rule 5.1, Comment [2]. Partners, managers, and supervisory lawyers are ultimately responsible for the conduct of the subordinate lawyers and non-lawyer employees and independent contractors they supervise. See Rules 5.1(c) and 5.3(c). Partners, managers, and supervisory lawyers are responsible for a firm's use of GAI tools. They should establish policies that define the permissible scope of GAI use by their subordinates and ensure compliance with these policies and their professional obligations. This includes providing comprehensive training on key topics such as the basics of GAI technology and operation, confidentiality, privacy, data security best practices, professional ethics, and acceptable use cases. In the case of independent contractors, they must ensure that such third parties use GAI tools properly and ethically, protect the security and confidentiality of information (including through the implementation of confidentiality agreements), have and maintain the proper

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credentials, and can be held accountable in an appropriate legal forum when necessary.

Rules 7.1 through 7.5. Information About Legal Services.

The provisions governing lawyer advertising, Rules 7.1 through 7.5, chiefly prohibit lawyers from engaging in communications about the lawyer, his or her firm, or the services he or she provides that are false or misleading. See, e.g., Rules 7.1(a)-(c); Rule 7.3(b)(3); Rule 7.5(a). As with many areas of legal practice, GAI tools may be used to conduct lawyer advertising without the need for much, if any, human input. When employing such tools, whether in-house or through a third-party provider, a lawyer remains responsible for the content of the advertising. Therefore, he or she should ensure that the work product does not contravene the limitations set forth in Rules 7.1 through 7.5 before publication or broadcast.

Rules 8.3 and 8.4. Identifying and Reporting Professional Misconduct.

The legal profession has long defined itself as self-governing, wherein its members form the first line of defense against malfeasance by their fellows. See Preamble [10]. This duty is codified in Rules 8.3 and 8.4. Rule 8.4 defines the parameters of professional misconduct for lawyers, including committing a criminal act reflecting on the lawyer's honesty, trustworthiness, or fitness, engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, or engaging in conduct prejudicial to the administration of justice. Rule 8.3(a) requires a lawyer to report the professional misconduct of another lawyer to the appropriate disciplinary authority when such misconduct "raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects . . . ."

Given the increasingly-widespread adoption and use of GAI tools across the legal profession, courts and lawyer disciplinary bodies have begun levying sanctions against GAI misuse bearing on a lawyer's honesty and trustworthiness—most often, involving the inclusion of incorrect or misleading case and statutory citations and quotations in legal briefs and other documents. Lawyers must therefore exercise due diligence not only in reviewing their own GAI output as required under Rules 1.3, 3.1, and 3.3, but also with respect to the output of opposing counsel.

The discovery of such errors may require reporting to the tribunal during pending litigation or to the appropriate disciplinary authority outside litigation when, in the lawyer's reasoned judgment, the misconduct is "substantial." See Rule 8.3(a). Comment [3] to Rule

8.3 defines "substantial" to refer to "the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware." Accordingly, even a single incorrect citation may require reporting under appropriate circumstances.

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INTERIM GUIDELINES FOR THE ETHICAL USE OF GENERATIVE AI BY

RHODE ISLAND JUDICIAL OFFICERS

The following guidelines are intended to provide Rhode Island's judicial officers with direction for and assistance with employing generative artificial intelligence ("GAI") tools consistent with their duties and responsibilities under Article VI of the Supreme Court Rules, the Rhode Island Code of Judicial Conduct (the "Code"). For the purposes of these guidelines, GAI is defined to mean a technological system, whether hardware or software-based, incorporating any technology (including but not limited to machine learning) purporting to approximate human cognition, perform tasks and generate outputs without significant human oversight, and/or learn from data sets and experience/repetition to augment the technological system's performance. GAI-based tools may be used, among other ways, to conduct legal research, review and summarize evidence and testimony, and draft documents. While such tools may offer judicial officers opportunities to better and more efficiently serve their litigants, it is essential to consider and address potential ethical concerns related to the misuse of such technologies, expressly but without limitation including GAI.

Accordingly, these guidelines highlight and comment on those Code provisions most relevant to judicial GAI use, in order to establish a reasonable, non-exhaustive framework of parameters buttressed by illustrative examples ensuring that judicial officers' use of artificial intelligence technologies does not undermine or replace their independent decision-making processes and remains wholly consistent with their duties and ethical obligations set forth in the Code. Judicial officers should therefore read these guidelines in conjunction with, not in place of, preexisting ethical guidance regulating judicial conduct in general. Those seeking additional specific guidance or ethical advice regarding their use of GAI in any particular instance or circumstance may seek further advice from the Supreme Court's Judicial Advisory Committee.

Rule 1.2. Promoting Confidence in the Judiciary.

Rule 1.2 of the Code requires judicial officers to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the Judiciary, and to avoid impropriety and the appearance of impropriety. The term independence means freedom from influence or control other than those established by law. Integrity means probity, fairness, honesty, uprightness, and soundness of character. Impartiality means the absence of bias or prejudice and the maintenance of an open mind. Impropriety is defined, by contrast, to denote conduct violating the law, court rules, or the Code, or which otherwise undermines a judicial officer's independence, integrity, or impartiality.

GAI may provide judicial officers new and innovative technologies to assist with the competent and efficient resolution of cases and controversies. However, in employing such capabilities, judicial officers must be cautious not to engage in any conduct, or to permit others under the judicial officer's direction or control to engage in any conduct which could call the independence, integrity, and impartiality of the judicial officer or court proceedings into question. As Comment [5] to Rule 1.2 explains, even the appearance of impropriety may reflect adversely on a judicial officer's "honesty, impartiality, temperament, or fitness to serve as a

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judge," or otherwise undermine trust in the judicial system. These themes will be elucidated with more particularity within the context of the other Rules discussed below.

Rule 2.2. Impartiality and Fairness.

Under Rule 2.2, judicial officers are obligated to uphold and apply the law objectively and impartially, including by making reasonable efforts consistent with court rules to facilitate the ability of all litigants to be fairly heard, whether represented or otherwise. See also Rule

2.6. This duty may be impacted by GAI in at least two (2) ways. First, GAI tools are prone to so-called "hallucinations," or the production of false or fictitious information or output. Examples include citations to nonexistent or inapposite cases, inaccurate or misleading analysis of authority, or the inclusion or advocation of inapposite or unreliable arguments or positions. Thus, while Comment [3] to Rule 2.2 clarifies that "good- faith errors of fact or law" made "[w]hen applying and interpreting the law" do not violate Rule 2.2, such errors occurring as the result of a judicial officer's use of faulty GAI output or from a lack of appropriate training in the use of GAI technologies may not fall within this safe harbor. Similarly, GAI use which compromises a judicial officer's impartiality in dealing with case parties or undermines the fairness or proper administration of court proceedings may also violate his or her duties under this Rule.

Second, as GAI use continues to grow, the judicial officer's duty to help facilitate the ability of all parties appearing before the court to be fairly heard may encompass permitting parties to use GAI tools in and out of the courtroom. In doing so, however, judicial officers must avoid permitting a party's use of GAI to impermissibly interfere with the proceedings, waste judicial resources, or infringe on another party's rights. Care must be taken to strike an appropriate balance between permissiveness and regulation in this context to ensure the fair treatment of all parties appearing before the court.

Rule 2.3. Bias, Prejudice, and Harassment.

Rule 2.3 directs judicial officers to perform their duties absent any bias, prejudice, or harassment, or the appearance thereof, and to ensure that neither court staff nor case parties engage in any such conduct, either. Comment [2] to Rule 2.3 clarifies that prohibited manifestations of bias, prejudice, and harassment include, but are not limited to, the promotion of stereotypes, irrelevant references to personal characteristics, and suggestions of a connection between race, ethnicity, and nationality and criminal conduct. GAI tools have been proven to manifest biases in some instances, both in the manner in which they generate content and in the substance of the content generated, with such biases caused by any one or more potential issues, including without limitation the data used to train the tools and/or inherent bias of the programmers. In employing GAI tools in furtherance of their official duties and permitting court staff and litigants to do the same, judicial officers should remain aware of manifestations of bias, prejudice, and harassment in GAI-generated content and in the ways in which it may be employed. This includes understanding not only

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that GAI content relied upon by the judicial officer may include bias or prejudice, but also ensuring that such content does not unduly affect the judicial officer's conduct or ultimate decision-making in a given case by, among other techniques, filtering all GAI-produced content though the judicial officer's own training, knowledge, and experience. As with Rule 2.2, these responsibilities apply with equal force to all parties appearing before the court, represented or otherwise.

Rule 2.4. External Influences on Judicial Conduct.

Rule 2.4 prohibits judicial officers from allowing their judgment or conduct to be influenced by any public or private interests. It also prohibits judicial officers from conveying or allowing others to convey that any external force is in a position to influence them. Classic examples of external influences on judicial conduct include such disparate sources as public pressure, media criticism, personal intimidation, private financial ventures, and romantic entanglements. What ties these forces together is their potential ability to sway a judicial officer's reasoning or shape his or her treatment of the parties in a given case, thereby eroding confidence in the judicial officer's ability to fairly and impartially administer justice and, by extension, undermining trust in the Judiciary as well.

GAI tools present an additional source of potential undue influence. This risk is particularly acute with regard to written judicial decisions, given the ease with which GAI tools may produce dense, authoritative-seeming written content on demand. Accordingly, judicial officers considering using GAI tools for drafting purposes should proceed with extreme caution to ensure that GAI-generated content never influences or appears to influence any conclusion or final decision in a case. They may consult or review but should never rely on GAI-produced content when drafting official documents such as orders and decisions. See also Rule 2.7 (establishing a judicial officer's duty to decide the cases assigned to him or her).

Rule 2.5. Competence, Diligence, and Cooperation.

Rule 2.5 imposes twin duties of competence and diligence on judicial officers. Competence is defined in Comment [1] to Rule 2.5 to mean "the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform a judge's responsibilities of judicial office." Although the duty of diligence is not so directly defined, the remaining Comments clarify that it includes such responsibilities as devoting sufficient time to judicial duties, arriving for proceedings promptly and encouraging attorneys, parties, and court staff to do the same, disposing of matters promptly and efficiently, and endeavoring to reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.

Nothing in this language affirmatively requires judicial officers to adopt or employ GAI tools in the exercise of their judicial duties. Nonetheless, given the fast pace at which such technology is developing and the concomitant elevated rate of GAI adoption throughout many sectors of society including the practice of law, a judicial officer's duty of competence does obligate him or her to remain aware of the nature, capabilities, applications, and limitations of

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GAI tools. This duty may be satisfied by undertaking ongoing training on relevant topics such as GAI developments, capabilities, safety and security, and appropriate use cases. Similarly, a judicial officer's duty of diligence does not presently compel the use of GAI tools to properly discharge his or her judicial responsibilities. For those judicial officers choosing to employ GAI tools, they should never outsource so much of their work to the tools that their dedication and attention to cases, attorneys, parties, and subordinates is diluted to a level incommensurate with their responsibilities under Rule 2.5.

Rule 2.9. Ex Parte Communications.

Rule 2.9 generally prohibits judicial officers from initiating, permitting, or considering ex parte communications concerning a pending or impending case outside the presence of the parties or their attorneys. Of particular relevance here is the specific proscription in Rule 2.9(C) barring judicial officers from "investigat[ing] facts in a matter independently" and requiring them to

"consider only the evidence presented and any facts that may properly be judicially noticed."

Comment [5] to Rule 2.9 explains that the prohibition against independent factual investigation

"extends to information available in all mediums, including electronic."

Most—if not all—GAI tools develop capabilities by training on reams of input data derived from diverse sources. While this method allows GAI tools to serve many useful functions, such as efficiently conducting legal research and quickly organizing discovery documents, it also presents the danger that outside information may bleed into search results and GAI-produced content. For example, an internet search for images of the site of real property in dispute may be accompanied by GAI-generated information about the site not appearing in the case record. Thus, even innocuous-seeming GAI use may run afoul of a judicial officer's responsibilities under Rule

2.9. Therefore, judicial officers should carefully review all GAI-produced content for fidelity to the judicial officer's initial query, and in instances where outside information appears, take appropriate remedial steps.

Rule 2.12. Supervisory Duties.

Rule 2.12(A) requires judicial officers to encourage those under their direction and control, such as clerks and court staff, to conduct their official activities in a manner consistent with the judicial officer's own obligations under the Code. This duty includes a prohibition against asking or expecting subordinates to engage in conduct on the judicial officer's behalf that the judicial officer could not undertake on his or her own.

In furtherance of these obligations, judicial officers should enact policies designed to ensure their subordinates' GAI use conforms with the judicial officer's own ethical obligations under the Code. This may be accomplished via a global order entered by the chief or administrative judicial officer of a particular court or, in the absence of such an order, at the individual discretion of each judicial officer. In either case, such policies should include guidance outlining the scope of permissible staff GAI use and ensuring their proper training on such relevant topics as the basics of GAI technology and operation, confidentiality, privacy, data security best practices, professional ethics, and acceptable use cases. Failure to conform to

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established GAI use policies may subject a judicial officer's subordinates to potential employment discipline.

Rule 2.15. Responding to Judicial and Lawyer Misconduct.

Rule 2.15 obligates judicial officers to take appropriate action whenever they come to know that there is a substantial likelihood that an attorney or fellow judicial officer has violated the professional ethics code appliable to that person. Appropriate action may include speaking with or counseling the person, referring him or her to a superior, or, in the most serious cases raising a substantial question as to the person's honesty, trustworthiness, or fitness, referring the person directly to the applicable disciplinary authority. As these guidelines endeavor to demonstrate, the emerging frontier of GAI technology is fraught with potential ethical landmines for judicial officers. Its successful navigation requires not only adherence to one's personal ethical responsibilities but, also, vigilance in identifying, addressing, and when required policing the conduct of one's fellows when that conduct falls below the acceptable minimum thresholds laid out in these guidelines. Attorneys, as officers of the court over whom judicial officers exercise authority, also fall within the ambit of judicial officers' duties under Rule 2.15. Accordingly, judicial officers should at all times seek to foster the highest ethical standards for GAI use between and among themselves and the attorneys with whom they interact in the courtroom.

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