• ABA Formal Opinion 512 sets a new standard for obtaining informed consent before using Generative AI (GenAI) on sensitive client information.
• Lawyers are expected to explain how GenAI works, outline the risks involved, and ensure clients fully understand before proceeding.
• These informed consent expectations align with those from GDPR, offering a familiar framework for firms that have handled GDPR compliance.
• Don’t navigate this alone—whether evaluating GenAI tools or ensuring compliance with Opinion 512, it’s important to seek expert, independent advice.

Generative AI (or GenAI) is shaking up the legal world. From drafting contracts to processing piles of data, GenAI tools are changing how we get things done—fast. But, like anything new in law, it comes with strings attached. Enter ABA Formal Opinion 512. This opinion gives lawyers guidance on using GenAI responsibly, especially when it involves handling sensitive client information. And here’s the kicker: before diving in and using GenAI, lawyers are now required to get informed consent from their clients.

So what’s the big deal? The idea of informed consent might sound familiar—you’ve probably been keeping clients informed all along. But this time, it goes a step further. Now, if you’re using GenAI, you’ve got to explain what this tech does, how it works, what risks come with it, and get a clear “yes” from your clients before proceeding. It’s not just a courtesy; it’s part of your ethical obligations. And if this sounds like déjà vu from the GDPR (General Data Protection Regulation) days, you’re not wrong—there’s a lot of overlap between the two, and that’s actually good news for those of us who’ve been through the GDPR trenches.

So what exactly is informed consent, and how does it fit into your practice? In simple terms, informed consent means your client knows exactly what’s going on before you use GenAI with their sensitive info. It’s about being upfront—telling them how the AI works, why you’re using it, and what risks might be involved. Only after they’ve got all the facts can they give you the go-ahead.

According to ABA Formal Opinion 512, this isn’t something you can breeze through in a quick email or a passing mention. You need to clearly explain the benefits and risks of using GenAI, especially when it involves their personal or case-related information. Clients need to understand how their information will be processed by AI, how it might be stored, and whether there’s a risk of confidentiality breaches, inaccuracies, or even biased outcomes.

If this level of detail sounds familiar, it’s because GDPR required a similar approach when it came to handling personal data. Many of you working in law firms during the GDPR rollout will remember the scramble to implement new privacy policies, get client approvals, and make sure your international clients were protected. The good news is, if you managed that, a lot of the same strategies will help you handle this.

Let’s take a closer look at GDPR to see where the similarities lie. GDPR requires consent to be:

• Freely given: Your clients need to agree without any pressure.
• Specific and informed: Clients must understand exactly what their data is being used for and why.
• Unambiguous: No vague terms—clients need to clearly know what they’re signing up for.
• Retractable: The client has the right to withdraw consent at any time.

For many law firms, this meant rethinking how they communicated with clients about data use. The GDPR didn’t just ask for a signature—it asked for a real understanding. And much like GDPR, ABA Opinion 512 isn’t just about getting a checkbox marked; it’s about making sure clients know what’s happening with their data and giving them the power to opt in or out.

In the early days of GDPR, law firms had to build entire processes around obtaining and documenting consent, and that wasn’t easy. But firms adapted by creating detailed privacy notices, new client agreements, and training staff to explain the ins and outs of data use. The same kind of structured, transparent communication is now required under Opinion 512 when it comes to GenAI.

Now, let’s connect the dots between ABA Formal Opinion 512 and GDPR. Both emphasize informed, explicit consent before handling sensitive information—whether that’s data processing under GDPR or GenAI use in legal services under Opinion 512. Both require a level of transparency that ensures clients understand what’s happening with their information.

But there are a few key differences. First, GDPR applies across industries, governing the use of personal data on a large scale, while Opinion 512 is narrowly focused on the ethical responsibilities of lawyers. The heart of Opinion 512 is about maintaining client trust and upholding a lawyer’s duty of care.

The real wrinkle? Under Opinion 512, it’s the lawyer’s responsibility to understand the technology and the risks it brings. And that’s where things get tricky. Most lawyers aren’t AI experts, yet they’re now expected to explain GenAI to their clients, covering not just the benefits but also the potential risks—like confidentiality breaches or the AI’s tendency to produce biased or inaccurate results.

Here’s the rub: while GDPR had data protection officers and consultants to guide firms through compliance, Opinion 512 puts the responsibility squarely on lawyers to understand and communicate the risks of GenAI. And we’re not just talking about privacy concerns. GenAI introduces a range of risks that go beyond data leaks—think AI hallucinations, where the tool produces plausible but factually incorrect results, or biases in AI decision-making that could skew outcomes in unpredictable ways.

This is a new challenge for many lawyers. While you don’t need to become an AI expert, you do need to know enough to communicate the risks clearly to your clients. That means bridging the gap between legal expertise and technical understanding, which isn’t always easy.

My advice? Don’t go it alone. Whether you’re evaluating new GenAI tools for purchase or ensuring your firm can use generative AI to deliver top-notch results to clients, it’s crucial to find a trusted, independent advisor. You need someone who can help you understand the technology, ask the right questions, and guide you through this evolving landscape.

So much of what you’ll hear on sales calls with these innovative new GenAI companies is pure marketing language—carefully crafted to make the product sound irresistible. But ABA Formal Opinion 512 makes one thing very clear: lawyers must understand and explain the risks and benefits of using GenAI, especially when it comes to handling confidential client data. How can you ensure you’re getting the real answers, not just the sales pitch?

At LegalTech Hub, we’ve already helped numerous firms and corporate legal teams develop AI policies, set guidelines, and choose the right GenAI products. Now, we’re turning our focus to ABA Opinion 512. Our team, including an experienced privacy professional trained on GDPR, is ready to help you navigate these new ethical expectations.

Contact us here, and let’s ensure your firm is prepared to confidently use GenAI while staying compliant and protecting your clients.

One last note. I’ve intentionally avoided diving into the debate on the value or efficacy of the standards set in ABA Formal Opinion 512—I’ll leave that to the OG artificial intelligence experts. If you’re up for a deep dive and want a good analysis and debate on the merits of the opinion, I highly recommend checking out Noah Waisberg and Adam Roegiest’s article here.