Why Account Setup Matters More Than the Generative AI Tool

Why Account Setup Matters More Than the Generative AI Tool

Generative artificial intelligence (GAI) is advancing far more rapidly than the technologies that preceded it, and adoption rates are soaring. Data from the soon-to-be-released 8 a.m. Legal Industry Report, which I author, shows that in just three years since ChatGPT’s release, the majority of lawyers are now using consumer-grade general AI tools, such as ChatGPT and Claude, for work-related tasks. 

Many ethics opinions written during the early days of GAI warn against the use of consumer tools. However, the authors of those opinions also acknowledge that technology changes rapidly and is a moving target. For that reason, there are no outright bans on any type of technology, as explained in the 2024 Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence:  “This report offers no ‘conclusions.’ As AI continues to evolve, so will the work of NYSBA and the groups tasked with ongoing monitoring.”

Instead, the Task Force explained that the core ethical obligation that lawyers have is to carefully vet software tools to ensure that confidential client information and other sensitive data are properly protected: “You should obtain assurance that the Tool provider will protect your client’s confidential information and will keep each of your client’s confidential information segregated. Further, you should periodically monitor the Tool provider to learn about any changes that might compromise confidential information.”

It’s been more than one and a half years since that report was published, and GAI tools continue to evolve quickly. Most legal technology platforms have incorporated some type of GAI functionality, and hundreds of GAI legal technology startups have launched. 

These legal-specific tools are developed with the workflows and data privacy needs of legal professionals in mind, but can sometimes be prohibitively expensive unless the features are rolled out into products that your firm already uses.

Similarly, most publicly available GAI tools, like ChatGPT, now offer more secure business and enterprise tiers. These products are designed to meet the needs of businesses like the legal profession, which require more stringent security features and robust data privacy protections. This means that for legal professionals who do not already have access to GAI functionality in the legal software they currently use at their firm and who are seeking cost-effective access to cutting-edge GAI, options like Claude, ChatGPT, and Google Gemini could now be viable alternatives. 

At least, that’s what attorney Carolyn Elefant—author of the book "Solo by Choice,” and with whom I co-authored "Social Media Lawyers: The Next Frontier”—recently concluded. She recently analyzed the protections offered by business and enterprise-level GAI accounts and concluded that attorneys can use these publicly available GAI tools to handle confidential data, as long as they select the appropriate version and configure it properly.

As Carolyn explained, “Business versions provide contractual protections through a Services Agreement and Data Processing Addendum, prohibit training on user data, restrict human review to security incidents rather than content monitoring, and offer administrative controls over retention and workspace security.”

Of course, there are caveats, and depending on your firm’s requirements, you may need additional protections in place. So, make sure to read her analysis in its entirety and carefully vet all GAI products that you’re considering for your firm.

Ultimately, although legal-specific AI platforms remain the most obvious choice for compliance and tailored workflows, they are not necessarily the only ethical path. General tools like ChatGPT, Claude, and Gemini have matured to the point where their business and enterprise tiers can often provide the security features lawyers require. 

Regardless of the path you choose, the key to ethical adoption remains the same: compliance is not a feature you buy, but is the result of the diligence you exercise in selecting the right version of GAI and configuring it properly.

Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at 8am, the team behind 8am MyCase, LawPay, CasePeer, and DocketWise.She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.