Login | May 03, 2025
AI vendors are coming after lawyers. What about confidentiality?
RICHARD WEINER
Technology for Lawyers
Published: May 10, 2024
For over a year now, Microsoft has been aggressively selling a generative AI product to lawyers that connects attorneys to OpenAI, the home of ChatGPT’s various iterations. In doing so, the sales folks are generally promising that using their chatbot won’t violate any attorney rules of privacy or confidentiality.
Except, of course, that those promises bang up against the MS TOS (terms of service), which nobody reads because….
Law.com recently ran an article that said “[m]ore than a year after law firms and legal tech companies signed onto Microsoft’s Azure OpenAI Service, which gives users access to OpenAI’s generative artificial intelligence models via the Azure Cloud, many found out that a terms-of-use loophole could make privileged information susceptible to third-party review.”
The problem? Well, at least one problem.
There may be a bunch of problems if any of all you lawyers bother reading your TOS’s.
But anyway, this particular problem involves a manual (living human) review of materials that are involved when “abuse monitoring” is triggered.
That TOS is pretty common.
If someone is accused of various kinds of abuse, a person has to look at the text to see if the situation should be escalated.
Nevertheless, that one could conceivably violate representations of total data neutrality that have to be at the heart of complete protection of client confidentiality.
And beyond just Microsoft, we are going to have vendors using MS products as adjuncts to their products who are promising complete confidentiality based on Microsoft’s promises.
A lawyer’s duty of due diligence demands that attorneys make sure that their client data is safe from human eyes, other than as authorized, and that a lawyer needs to make every reasonable effort to keep client information private.
That is certainly, beyond a doubt, a fundamental set of questions to ask any data vendor. But here the shoe is on the other foot.
So—is it reasonable under ABA Formal Opinion 477R for a lawyer to read the terms of service for every vendor contract?
Not sure reading the TOS is in there. Should it be?
Are you going to read all of your terms of service?