AI ethics guide · Washington, D.C.
Can a D.C. lawyer put client documents into an AI tool?
What Opinion 388 says about client confidentiality, and the other duties that come with using AI.
Not legal advice. This is a plain-English summary of Opinion 388, written by the team that makes ClientSafeAI, and it hasn't been reviewed by a lawyer. Read the source itself, and ask the the District of Columbia bar's ethics hotline if you're unsure how it applies to you.
| Document | D.C. Bar Ethics Opinion 388, Attorneys’ Use of Generative Artificial Intelligence in Client Matters |
|---|---|
| Issued by | D.C. Bar Legal Ethics Committee |
| Date | April 2024 |
| Status | Advisory ethics opinion |
The short answer
Yes, once you know two things about the tool: whether what you enter can be seen by others, and whether your use of it affects what other users get back. Opinion 388 treats what the provider keeps as the central risk, and points to zero-data-retention terms, or a paid product with better terms, as ways to fix it. It also warns that clients typically shouldn’t even be asked to consent to broad disclosures that could waive privilege.
What it says about confidentiality
D.C. puts retention at the centre. Before using a generative AI product on a client matter, a lawyer should work out whether inputs are visible to the provider or to third parties, and whether the lawyer’s interactions can influence what the tool produces for other users.
The opinion treats a “yes” to the first question as a red flag, though one that may be fixable, by negotiating with the provider or upgrading to a paid product with better terms. It describes zero data retention, where the provider keeps neither the inputs nor the outputs, as one way some products resolve the concern. A “yes” to the second question may be harder to fix.
Consent isn’t an easy way out either. The opinion says clients are unlikely to give informed consent to wide-ranging disclosures that could waive attorney-client privilege or expose their confidential information to third parties, potentially including adversaries, and typically shouldn’t be asked to.
A lawyer who has undertaken to bill on an hourly basis is never justified in charging a client for hours not actually expended.
D.C. Bar Ethics Opinion 388
The other duties it covers
| Competence | Generative AI products aren’t search engines. Verify what they produce before relying on it. |
|---|---|
| Candor | Fake citations violate the prohibition on false statements of law. Take extra care where a court has an AI standing order. |
| Supervision | Supervisory lawyers must make sure subordinates follow both the confidentiality and the verification rules. |
| Fees | The most-quoted sentence in this area, adopted by Texas and echoed by Florida: bill only hours actually worked. |
In practice
- For each AI tool, find out whether inputs are visible to others and whether they can influence other users’ results.
- Prefer tools whose terms give zero data retention. A paid tier often has better terms than the free one.
- Don’t ask clients for blanket consent to share confidential information with AI tools.
- Verify every citation before it’s filed.
How this compares with ABA Formal Opinion 512
The ABA's national opinion requires a client's informed consent before information relating to the representation goes into a self-learning AI tool, and says boilerplate consent in an engagement letter isn't enough. Read the Opinion 512 summary and firm checklist.
Keep client documents on a server that’s only yours
A Private AI Workspace runs on a GPU server ordered for one firm. Your documents, the AI model and the database stay on it, it never trains on your files, and answers cite the page they came from. It costs $499 a month, flat.
Sources
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Not legal advice. This is a plain-English summary of Opinion 388, written by the team that makes ClientSafeAI, and it hasn't been reviewed by a lawyer. Read the source itself, and ask the the District of Columbia bar's ethics hotline if you're unsure how it applies to you.