Bar Ethics Guidance on AI | The Heppner Problem

Bar Ethics Guidance on AI: Post-Heppner

1United States v. Heppner was decided under federal evidence law, not state bar ethics rules. But its holdings directly implicate three ABA Model Rules that govern attorney conduct in every state jurisdiction. Multiple state bars had issued formal guidance before Heppner. The ruling adds factual weight to obligations that were already in place.

2This page summarizes the governing ABA model rules as they apply to Heppner's facts and the formal ethics opinions issued by state bars. Last updated April 2026.

ABA Model Rules: Applied to Heppner

Model Rule 1.1: Competence

3Rule 1.1 requires competent representation, including the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Comment 8 requires attorneys to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.

Heppner Application Heppner is now part of the technology landscape attorneys must understand. Advising clients about AI tool use without reference to the privilege implications of that use is a competence question. An attorney who receives a client's AI-generated documents and asserts privilege over them without analyzing the platform's terms of service and the Heppner holding has not exercised the thoroughness Rule 1.1 requires.

Model Rule 1.6: Confidentiality

4Rule 1.6 prohibits disclosure of information relating to a client's representation without informed consent. The rule extends to the attorney's obligation to make reasonable efforts to prevent inadvertent disclosure by others, including technology service providers.

Heppner Application A client who uses a consumer AI platform to prepare materials related to their legal matter has disclosed information to a third party whose terms of service permit disclosure to regulatory authorities. Whether Rule 1.6 requires an attorney to warn clients about this risk before they use such platforms is a question multiple bar ethics opinions have now addressed. The answer in every opinion that has considered it is yes.

Model Rule 3.3: Candor Toward the Tribunal

5Rule 3.3(a)(1) prohibits knowingly making a false statement of fact or law to a tribunal. Rule 3.3(a)(3) prohibits offering evidence the attorney knows to be false.

Heppner Application An attorney who asserts privilege over AI-generated documents without a basis for that assertion (Heppner establishes that consumer AI documents generally have no such basis) risks a Rule 3.3 issue if that assertion is made to a court. Quinn Emanuel raised the privilege claim in Heppner. The court rejected it. The question of whether a privilege assertion without reasonable basis implicates Rule 3.3 was not decided in Heppner and remains open.

State Bar Formal Opinions

California Issued 2023

Opinion

California State Bar Practical Guidance for the Use of Generative Artificial Intelligence (2023)

AI citations

Attorneys must verify AI-generated citations before filing. Competence requires understanding of AI tool limitations including hallucination risk.

Confidentiality

Confidential client information should not be submitted to AI tools without confirming the tool's data handling practices and obtaining client consent where required.

Source

California State Bar (PDF)

Florida Issued 2024

Opinion

Florida Bar Ethics Opinion 24-1 (2024)

AI citations

Attorneys must verify AI-generated legal citations before submitting to a tribunal. Supervision of AI tools is required under Rule 5.3.

Confidentiality

Disclosure of AI use may be required in certain circumstances. Client consent required before submitting client information to AI platforms without adequate privacy protections.

Source

Florida Bar

New York Issued 2023

Opinion

NYSBA Ethics Opinion 1200 (2023)

AI use

AI tool use is permissible subject to competence obligations. Attorney must understand AI limitations, verify output, and protect confidential information.

Post-Heppner

NYSBA published analysis of the Heppner ruling in March 2026, characterizing it as "both a wake-up call and a warning to attorneys and their clients." nysba.org

Texas Issued 2023

Opinion

Texas Professional Ethics Committee Opinion 680 (2023)

Competence

Duty of competence under Texas Disciplinary Rules Rule 1.01 applies to AI tool use. Attorneys must verify AI-generated research and citations.

Confidentiality

Confidentiality obligations apply to client information submitted to AI platforms. Review platform terms before use.

Source

Texas Professional Ethics Committee

Arizona · Washington · Colorado · Illinois Pending

Status

As of April 2026, formal AI ethics opinions are in development. Interim guidance from these bars has emphasized existing competence and confidentiality obligations. Heppner is expected to accelerate formal opinion issuance.

What Bar Ethics Guidance Does Not Resolve

6Bar ethics guidance addresses attorney obligations regarding AI use. It does not address the privilege and discovery questions Heppner raises for clients who use AI independently. An attorney can fully comply with every applicable ethics opinion and still receive from a client a set of AI-generated documents that carry no privilege protection under Heppner.

7The guidance that addresses this gap most directly is the confidentiality obligation. Attorneys who counsel clients to avoid submitting confidential matter information to consumer AI platforms, and who document that counsel, have taken the step most directly responsive to the risk Heppner identifies. Whether that step is sufficient, and what it means for clients who used consumer AI before receiving that counsel, depends on circumstances specific to each matter.