D.C. Bar Ethics Opinion 388: AI Guide for Small Firms
Introduction: The New Reality of AI in D.C. Legal Practice
The D.C. Bar's Ethics Opinion 388 addresses what many small firm attorneys already know: AI tools offer tremendous opportunities but come with significant ethical challenges. Released in April 2024, this opinion doesn't change lawyers' fundamental obligations. Instead, it applies existing ethical frameworks to new technologies.
For solo and small firm attorneys in the District, navigating these requirements without the resources of larger firms can feel daunting. However, with proper understanding and the right tools, you can ethically incorporate AI into your practice while staying compliant with professional standards.
The core message is straightforward: technology may evolve rapidly, but your ethical duties remain constant.
Understanding Generative AI: Capabilities and Limitations
Generative AI isn't simply a search engine — it's fundamentally different from the legal research tools you're accustomed to using.
According to D.C. Bar Opinion 388, these key distinctions matter:
- GAI uses datasets, not databases: Unlike Westlaw or Lexis, GAI works with limited training data that may be incomplete, outdated, or biased.
- GAI predicts rather than reports: Instead of retrieving existing information, it creates "statistically probable" content based on patterns in its training data.
- GAI "hallucinations" are real: These tools can fabricate non-existent cases, authorities, and facts that appear credible but are entirely false.
The infamous Mata v. Avianca case clearly illustrates these risks. An attorney using ChatGPT received citations to non-existent cases and included them in a brief. When discovered, the attorney faced sanctions. The attorney's mistaken belief that ChatGPT was a "super search engine" highlights the importance of understanding what these tools actually do.
Tools like Clearbrief help mitigate these risks by automatically verifying citations against trusted legal databases. Its Fact-Citing and Verification feature connects directly to legitimate sources, ensuring your citations are real and accurate.
The D.C. Duty of Competence When Using AI in Legal Practice
Rule 1.1 requires competent representation, which now includes understanding the AI technology you employ. For small firm attorneys in D.C., this means:
- Have a reasonable understanding of how GAI works before using it
- Know the potential dangers, including "hallucinations"
- Recognize limitations in datasets and accuracy
- Understand the costs and benefits
- Verify AI-generated outputs before relying on them
You don't need to become a tech expert. The D.C. opinion suggests "the kind of diligence that any reasonable business owner would undertake before making a significant investment in technology for their legal practice."
Practical competence strategies:
- Start with low-risk AI applications like drafting routine discovery requests
- Create verification checklists for AI outputs
- Test AI tools before using them with active cases
- Follow reputable sources on legal AI developments
Clearbrief's Mistake Detection feature directly addresses this requirement by automatically flagging discrepancies between your written claims and source documents. This helps you maintain competence without extensive manual verification.
Protecting Client Confidentiality with AI Tools in Washington, D.C.
Rule 1.6 concerning confidentiality takes on new urgency with AI tools. Opinion 388 identifies two critical questions D.C. lawyers must ask:
- Will information provided to the AI be visible to third parties?
- Will my interactions with the AI affect answers given to future users?
Many free AI tools specifically collect and use your inputs for training and future improvement. The opinion notes that their privacy policies often treat user inputs as assets to "be exploited and sold to others."
For confidentiality protection:
- Review privacy policies of AI tools before use
- Be wary of free AI tools — they often retain and reuse your data
- Consider using legal-specific tools with better security measures
- Obtain informed client consent when necessary
- Consider sanitizing client information before inputting
Clearbrief addresses these concerns with SOC 2, Type 2 certification and robust data hygiene controls. Its "Bring Your Own Storage" option provides additional security and control over sensitive client information.
Candor to the Tribunal and AI-Generated Content
Rules 3.3 and 3.4 regarding candor to the tribunal and fairness to opposing parties have significant implications for AI use in litigation.
The D.C. Opinion specifically warns that:
- AI can generate fake citations and authority
- Courts increasingly require disclosure of AI use
- Lawyers must verify AI-generated content before submission
- AI "deepfakes" pose risks in evidence presentation
In light of these issues, courts are taking action. Judge Brantley Starr of the U.S. District Court for the Northern District of Texas now requires attorneys to certify that AI-generated content has been verified by a human.
Clearbrief's citation verification system helps ensure compliance with these rules. It connects with trusted legal research databases to verify the existence and accuracy of cited cases and authorities.
AI Billing and Fee Considerations for D.C. Practitioners
Opinion 388 addresses how to ethically bill for AI-assisted work under Rule 1.5. The guidance is clear:
- Bill only for time actually spent, even if AI reduces work hours
- Be transparent about AI costs with clients
- Include AI tool costs as expenses only with client agreement
- Never bill for AI learning time
For example, if you previously spent 10 hours on a research task that AI now helps you complete in 2 hours, you can only bill for those 2 hours. However, you may pass through the direct costs of AI tools as expenses if your fee agreement allows it.
Supervision Responsibilities for AI Usage
Even in small firms, D.C. lawyers must establish appropriate oversight of AI tools (Rules 5.1 and 5.3). The opinion recommends:
- Creating concise AI use policies
- Providing brief training on AI limitations
- Assigning someone to evaluate AI tools
- Developing verification protocols for AI outputs
- Regularly updating policies as technology evolves
A simple checklist for reviewing AI-generated content before submission can satisfy this requirement in small practices.
Client File Considerations and AI Usage
Under Rule 1.16(d), lawyers should consider whether AI interactions should be retained as part of the client file. Not every AI interaction needs preservation. However, you should document significant ones that influence case strategy or outcomes.
Practical Implementation for Small Firm Attorneys in the District
For solo and small firm attorneys in D.C., the key to ethical AI use is straightforward implementation:
- Start with limited, low-risk applications
- Create simple verification processes
- Use legal-specific AI tools with better security
- Be transparent with clients about AI use
- Document your verification steps
Clearbrief simplifies ethical compliance by providing built-in verification features. Its integration with document repositories and SOC 2 certification offers small firms enterprise-level security without the need for dedicated IT resources.
Conclusion: Balancing Innovation and Ethics
Opinion 388 recognizes that AI will eventually be "a boon to the practice of law." For small firm attorneys in the District, the path forward isn't avoiding AI but using it responsibly.
By understanding AI's capabilities and limitations, maintaining client confidentiality, verifying outputs, and properly supervising its use, small firms can leverage these powerful tools while upholding their ethical obligations.
Tools like Clearbrief that automate verification and enhance accuracy make this balance more achievable for resource-constrained practices. With proper implementation, AI can help small D.C. firms deliver better service to clients while maintaining full ethical compliance.
Remember: technology changes, but your ethical duties remain constant. With the right approach, you can embrace innovation while protecting your clients and your practice.
