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As technology has evolved, lawyers have continually adapted to use new tools and systems. From the introduction of personal computers to the widespread adoption of cloud-based services, each technological advancement has brought new efficiencies—and new ethical considerations. The release of generative AI tools in 2022 is no exception, prompting lawyers to reevaluate their ethical duties, particularly concerning confidentiality.

The duty of confidentiality has always been a cornerstone of legal ethics. As technology advanced, the ways in which lawyers could potentially breach this duty evolved as well. For instance, in April 2015, the Professional Ethics Committee For the State Bar of Texas (‘Ethics Committee”) released Ethics Opinion 648, which addressed whether lawyers could communicate confidential information over email. The opinion underscored that while email could generally be used, lawyers needed to assess risks and consider encryption or alternative communication methods in specific situations.

A year later, in December 2016, Ethics Opinion 665 tackled the inadvertent transmission of metadata in electronic documents. The Ethics Committee emphasized the need for lawyers to understand the nature of metadata, its potential to contain confidential information, and the need to take steps to prevent unintended disclosures.

In 2018, Ethics Opinion 680 further raised the bar for technological competence by advising lawyers on the use of cloud-based data storage and software systems. The opinion provided concrete steps for lawyers to take, including gaining a general understanding of cloud technology, reviewing terms of service, evaluating data security measures, and providing training to staff.

The latest shift in technology—the rise of generative AI—prompted the State Bar of Texas to issue Ethics Opinion 705 in February 2025. The opinion mirrors much of the guidance from Opinion 680 but introduces new considerations unique to generative AI systems. Unlike traditional cloud-based tools, many generative AI systems retain input data, potentially using it to train and improve their algorithms.

The Ethics Committee specified that “lawyer[s] must understand to a reasonable degree how the technology works and must take reasonable precautions to ensure that any client confidential information is protected”. These reasonable precautions may include:

1. acquiring a general understanding of how generative AI technology works;
2. reviewing and potentially renegotiating the terms of service for AI tools;
3. learning about the data security measures of the generative AI system, especially concerning data retention and vulnerability to hacking; and
4. training lawyers and staff on proper use of generative AI tools while maintaining confidentiality.

The key takeaway is that lawyers must not only understand how generative AI generates outputs but also how it handles and stores input data. Failing to do so could result in unintended breaches of client confidentiality and potential ethical sanctions. 

Generative AI offers exciting opportunities to transform the legal practice, from automating research to drafting documents. However, lawyers must approach this technology with caution. Ethics Opinion 705 is a stark reminder that no matter how advanced a tool may be, the fundamental duty of confidentiality remains unchanged. Lawyers that invest time to understand generative AI and implement robust ethical practices will position themselves to lead in a technology-driven future. Conversely, those who neglect these responsibilities may damage their reputation and face ethics complaints and disciplinary actions. The choice is clear—embrace technology responsibly and uphold the profession's highest standards of integrity.