California’s Safe and Secure Innovation for Frontier Artificial Intelligence Models Act Hits the Governor’s Desk
Rich Harper
On August 29, 2024, California’s legislature passed and moved to the governor for consideration the Safe and Secure Innovation for Frontier Artificial Intelligence Models Act — known to many as S.B. 1047. The legislation has been particularly controversial because it’s focused on potential existential risks (as opposed to more discrete issues, such as deepfakes used in political campaigns) and would require AI companies to train and test foundation models (of a certain size), including the ability to shut a model down in certain circumstances. In that sense, the legislation is arguably not of as much of a “direct” concern to non-foundation model companies; however, because legislation (if signed) would apply to any AI company’s foundation model (of a certain size) with sales in California, the bill will likely be seen as having national effect. The governor has until the end of September to decide whether to sign the bill.

California’s S.B. 1047 is another reminder that legislative approaches to regulating AI vary widely, and we recommend everyone ask a few questions whenever they see a new legislative proposal discussed: How broad or narrow is the legislation (is it focused on one area, such as election law or employment law, or is it broader)? What actual impact is the legislation going to have on AI model companies and/or on the companies that use it? Like most legislation, AI proposals need to be analyzed to see the effects that will actually result. We’ll try to do that here as we discuss new legislation. [Contributed by Rich Harper]

The Florida Bar Moves Forward With Amendments to Ethical Rules
Rich Harper
On the same day (August 29, 2024), the Supreme Court of Florida approved certain amendments proposed by the Florida Bar to the state’s Rules Regulating the Florida Bar. The court approved a series of changes to the comment sections of various Florida ethical rules to warn the bar “about the necessity to take care in using generative artificial intelligence.” More specifically, the court offered new commentary language in the comment sections of its rules on (1) competence, (2) confidentiality, and (3) supervision (generally and as to non-lawyer assistants). The language generally reminds lawyers that generative AI “may create risks” impacting these duties and to consider implementing safeguards when using the technology.

There may be some developments in the future that require a change to the text of a legal ethical rule, but, to date, the core legal ethical rules of duty of competence, to supervise, and maintain confidentiality have stood up well in their application to generative AI (with no indication of a need to change the rules themselves). [Contributed by Rich Harper]

Colorado Justice Discusses the Need for Lawyers and Judges to Engage with AI
Sarah Dodson
As detailed in the linked Law360 article, Colorado Supreme Court Justice Maria Berkenkotter recently encouraged lawyers and judges to engage with AI, saying that “[f]or those of you thinking ‘this is a tomorrow problem,’ part of my message is it’s a today problem and it’s actually a yesterday problem.” She discussed a range of issues, from courtroom evidence to client billing, that lawyers and the court need to better understand with the increased use of AI. 

The legal profession is certainly increasing its awareness of and attention to artificial intelligence-related issues. Open discussion among judges, lawyers, and bar organizations should be very positive in increasing that awareness. In doing so, the key is to not overwhelm individuals with the scope of the technology, but instead to emphasize that we can move up the learning curve to better understand how AI can specifically impact our practices.

A Baker Botts Podcast on AI and Political Campaigns
Maggie Welsh
Baker Botts Partner Maggie Welsh regularly hosts an AI podcast called AI Counsel Code. We invite you to listen to a recent episode called “AI and Political Campaigns” in which she interviews Sterling Marchand, a Baker Botts partner and the chair of the firm’s Washington, DC, litigation practice group. With the recent presidential debate, the campaign season is heating up and AI is — for better or worse — going to play a role. Hear what Maggie and Sterling have to say about it.

For additional information on our Artificial Intelligence practice, experience, and team, please visit our page here. 

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