Can Lawyers Legally and Ethically Record Conversations With Clients Using Artificial Intelligence?

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ATTORNEY-CLIENT COMMUNICATIONS IN THE AGE OF AI

With significant advances in the effectiveness of artificial-intelligence (AI) powered transcription combined with the post-pandemic rise in online video meetings, it’s now easier and more convenient than ever to record and document attorney-client communications with AI.

But should lawyers record and transcribe communications with AI?  Some lawyers are concerned about confidentiality and privacy or fear that a client might regard a recording as suspect.  This comprehensive post addresses the following questions:

• What are the benefits of incorporating AI-powered transcription into workflow?
• What ethical and legal considerations are implicated by recording conversations with clients?
• Do the Terms of Service for AI-recording platforms provide adequate protection for confidentiality?
• What best practices should lawyers employ when using AI to transcribe client communications?

1.  Transcribing Attorney-Client Communications Is A No-Brainer

Lawyers have always had ways to document client conversations through handwritten notes or staff-prepared summaries.  But where AI changes the game is by making documentation near-instantaneous and comprehensible – which was hit or miss when the task was left to humans. 

From a practice perspective, attorney use of AI to transcribe an initial consultation or trial prep meeting is really a no-brainer.  Foremost, recording a client meeting enables lawyers to focus on the client, without the distraction of taking notes. And a transcript will always catch details that a notetaker will miss, sparing your office from costly and embarrassing repeated follow up with  your client. 

Keep in mind that clients benefit from access to a recorded transcript also.  A recorded transcript fosters transparency and breeds trust with clients by showing your willingness to permanently memorialize your advice.  AI-transcripts also serve an educational function.

 If, for example, you explain how the divorce or incorporation process works during your initial client meeting, your client can consult the transcript to refer back to your instructions as you explained them.  And you can transcribe videos you may have  prepared on various processes for clients who prefer written instructions.  

Written transcriptions can inoculate your firm against ethics and malpractice claims.  A transcription of intake calls and substantive client communications cut down on after-the-fact ‘I said, you said” scenarios where the client recalls the conversation one way and you remember it another. Likewise, recording conversations between support staff and clients lets you keep tabs on whether legal advice has been dispensed by non-lawyers – an activity on which the ABA just issued restrictive guidance in  ABA Formal Opinion 506 on Responsibilities in Working With Non-Legal Assistants (June 2023).

2.  What Ethical and Legal Considerations Are Implicated by Recording Client Communications?

Lack  of Consent

The most significant legal and ethics problems arise out of non-consensual or surreptitious recordings of client communications.  ABA Formal Opinion 01-422 takes the position that “a lawyer may not record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded.”  However, the Opinion is “divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but notes that it is inadvisable to do so.”

States’ views are mixed.  According to an article published in the University of Illinois Chicago Law Review, at least eighteen states have concluded or implied that recording client conversations without permission is not unethical  But advisory opinions in at least nine other states have held, or implied, that even if legal, it is unethical to record conversations without consent.  (For those curious, here’s a 50-state survey courtesy of Justia, current as of October 2022 summarizing state recording consent laws)

Finally, one legal scholar argues that secret client recordings are inherently deceitful, and therefore violate Model Rule 8.4.  See J. Bries, Legal  Ethics of Secret Client Recordings, 24 Georgetown J. Legal Ethics 55 (2020).

From a business perspective, secretly recording clients, even if legal in one-party consent jurisdictions, completely undermines the benefits of transparency and trust that flow from providing clients with a written record of attorney-client communications.  For that reason, full disclosure of client recordings, including an explanation of the reason for doing so is recommended as a best practice below for attorneys using AI to record and transcribe client conversations.

Confidentiality and Privacy

Recordings can also jeopardize client confidentiality if the information collected by the platform is used for training or made widely accessible. Nut regulators don’t mandate impenetrable Fort Knox level protection for every client communication. Comment 18 to ABA Model Rule 1.6 imposes a “reasonable efforts” standard to guard against disclosure, considering factors such as “sensitivity of the information” and cost and need for added safeguards.  Thus, even when using a reasonably secure recording product, lawyers should adopt best practices such as not recording personal identifiable information like a social security number or highly sensitive material like trade secrets for added client protection.

Tech Competence 

Using AI to transcribe client conversations triggers the duty of tech competence set out in ABA Comment 8 to Model Rule 1.1 and adopted by around 40 states. The ABA Comment doesn’t offer much guidance; it just requires lawyers to “keep abreast of changes in the law and practice,” including benefits and risks associated with relevant technology.  The benefits of using AI transcription have already been described, while the risks are readily manageable through understanding how their chosen platform works and adopting the best practices recommended below.

3.  Do the Terms of Service for AI-recording Platforms Provide Adequate Protection for Confidentiality?

General guidance on terms of service for AI recordings

If you plan to use AI to record client communications, you must familiarize yourself with the product’s terms of service, either by trudging through the terms yourself or using Chat GPT or another AI tool to take a first crack at a summary.  As a general rule, products designed specifically for lawyers generally comply with applicable legal and ethical requirements, but even here, there’s no substitute for reading the terms.

When it comes to choosing an AI recording tool for clients, you’ll want to avoid the following:

• Platforms or products that use the entirety of your recordings or transcriptions for training;
• Platforms or products that retain information that you’ve uploaded even after you’ve deleted it;
• Platforms that don’t take reasonable steps to protect privacy and confidentiality of your communications

Review of the Terms of Service for Fireflies.AI

With that in mind, let’s have a look at the Terms of Service and for Fireflies.AI which I’ve been using most recently.  [Beginner’s note: Be sure to review terms of service or terms of use, and not privacy policy which applies to data collected from you by the company for activities like payment or marketing, and not content you upload as part of your use of the site’s functions]. The discussion below highlights key provisions and does not go through the full terms of service which you should review in its entirety.

1.         User Content Definition

In reviewing AI terms of service, begin with the definition of ‘user content’ as that term is typically used later during a discussion of applicable protections.  Here, user content encompasses the conversations you record as well as any other materials you might upload to transcribe.

Fireflies.AI user content terms also require users to warrant compliance with applicable law.  So failing to obtain client permission in a two-party consent jurisdiction violates the site terms of service and could result in cancellation of your account.

2.         AI Provisions

The AI provisions cite risks in processing data but goes on to state that “Fireflies will take reasonable means to preserve the privacy and security of data.  For added protections, Fireflies.AI also offers a Private Cloud option, described below:

3. Other Data Protection Policies

The Terms of Service didn’t answer all my questions, so I had to dig further into Fireflies.AI’s Guide on Keeping Information Safe.  The Guide disclosed that data can be deleted completely from the system:

And also that data may be used in  a limited and anonymized fashion to improve transcription accuracy:

4.         Conclusions

Overall, the Fireflies.AIi terms and policies offer sufficient protection for most routine client communications.  That said, mileage may vary depending upon the nature of a given matter and degree of sensitivity of the information so be sure to consider your unique use case in evaluating whether to transcribe client conversations with AI and what tools to choose.

1.  What Are Some Best Practices for AI-Transcription of Client Communication?

            Based on the above analysis, here’s a list of best practices that lawyers can adopt to transcribe client conversations with AI tools lawfully, ethically, and in a way that both protects, benefits, and respects client interests.

Best Practice No 1: Due Diligence in Choosing AI Transcription Tools

Apply due diligence in choosing AI transcription tools to assure confidentiality and data privacy.  Generally, tools developed specifically for lawyers will include adequate safeguards and avoid use of data for training –  but that’s still no substitute for questioning the vendor and reading the terms of service yourself.  If you plan to  use a more general recording product, review both terms of service and any additional product guidance.  If doubts about security remain, contact the vendor directly.

Best Practice No. 2:  Employ AI Transcription Tools Prudently

Use AI recording tools prudently for an added level of confidentiality.  When using a vendor platform, refrain from recording or transcribing PII or other highly sensitive information.  Also, limit your use of a third-party storage platform; instead, download transcriptions on a regular basis to your own storage, and delete the recordings on the vendor platform as soon as practicable.

Best Practice No. 3:    Disclosure to Clients

Don’t just disclose AI transcriptions to clients – explain why you adopt the practice and tout the benefits.  That said, offer clients the chance to opt out.  Need a disclosure policy? Here’s Chat GPT’s first crack at it: