WHEREAS the National Association of Criminal Defense Lawyers (NACDL) is committed to enhancing the capacity of the criminal defense bar to safeguard fundamental constitutional rights and harness the unique perspectives of NACDL members to advocate for policy and practice improvements in the criminal legal system; and
WHEREAS prosecutors, law enforcement agencies, and other governmental entities are increasingly utilizing Artificial Intelligence (“AI”) tools in the investigation, charging, and prosecution of criminal cases; and
WHEREAS defense attorneys must understand and effectively utilize these evolving technologies in order to zealously represent their clients and to be able to identify and challenge unconstitutional, unethical, or otherwise problematic uses of such technologies by the government; and
WHEREAS when used ethically and appropriately, AI offers powerful capabilities that can significantly enhance the quality, efficiency, and effectiveness of criminal defense representation, particularly for under-resourced defenders; and
WHEREAS NACDL’s President Andrew S. Birrell convened the Task Force on Artificial Intelligence to provide guidance to defense lawyers on the appropriate uses of AI in representing clients; and
WHEREAS defense attorneys should adopt AI Use Policies for their offices within the next year to ensure that AI use conforms to the Model Rules of Professional Conduct while maximizing the benefits to their clients; therefore,
BE IT RESOLVED that NACDL urges defense attorneys to adopt AI Use Policies that recognize how the Model Rules of Professional Conduct are implicated by AI use, specifically: Rules 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.6 (Confidentiality), 2.1 (Independent professional judgment), 3.3 (Candor to the tribunal), and 5.3 (Supervision and nonlawyer assistance); and
BE IT FURTHER RESOLVED, in support of this call for defense attorneys to adopt an AI Use Policy, NACDL will issue a white paper that explains what Generative AI is, how it is being used by prosecutors and defense attorneys, and why defense attorneys have an opportunity and a professional obligation to understand and appropriately utilize AI in conformance with the Model Rules of Professional Conduct; and provides practical guidance for defense lawyers, such as identifying helpful AI tools, selecting a vendor, distinguishing between low-risk and high-risk uses, ensuring the confidentiality protocols of tools, requiring human verification of AI-produced content to avoid hallucinated case law or facts, talking to clients about the use of AI in their cases, and protecting against erosion of lawyering skills due to overreliance on AI tools; and
BE IT FURTHER RESOLVED, that NACDL will issue a Model AI Use Policy that will (1) identify the purpose and scope of the policy; (2) assign clear roles and responsibilities for development, implementation and oversight of the policy; (3) distinguish between uses that are permitted, those requiring supervisory approval, and those that are entirely prohibited; (4) set forth protocols to safeguard confidential, privileged or otherwise protected information; (5) establish protocols to verify the accuracy of AI outputs; (6) mandate training and supervision for use; (7) establish criteria for evaluating AI vendors and guide procurement decisions; (8) prescribe how disclosure or certification of AI use will be made in jurisdictions requiring it; and (9) provide for monitoring and enforcement of the policy.
