ABA Model Rule 1.6 in the Age of AI: What "Reasonable Efforts" Means for Legal Tech

Quick Answer: ABA Model Rule 1.6(c) requires attorneys to make "reasonable efforts" to protect client confidentiality. For AI billing tools, this means understanding where data is transmitted, who can access it, and whether third-party processing creates privilege waiver risk—not simply relying on vendor security certifications.

Introduction

ABA Model Rule 1.6(c) requires attorneys to "make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

For decades, this meant locking file cabinets and shredding documents.

Today, it means understanding exactly where your AI tools send client data—and whether that transmission creates privilege risk.

The Technology Competence Mandate

In 2012, the ABA added Comment 8 to Model Rule 1.1, requiring attorneys to maintain competence in "the benefits and risks associated with relevant technology."

This isn't optional guidance. It's a professional obligation.

When you use AI billing software that processes client emails on third-party servers, Comment 8 requires you to understand:

• Where that data goes
• Who can access it
• How long it's retained
• Whether it creates privilege waiver risk

"I didn't know" is not a defense.

What Counts as "Reasonable Efforts"?

ABA Formal Opinion 477R (2017) provides guidance on what "reasonable efforts" look like in the context of technology:

Factor 1: Sensitivity of the Information

Family law matters involving custody, criminal defense communications, M&A deal terms—these require heightened protection.

If you're handling sensitive matters and using AI tools that transmit data to third-party clouds, you need to document why that's a reasonable choice.

Factor 2: Likelihood of Disclosure

Cloud-based AI tools create multiple potential disclosure points:
- The vendor's servers
- The AI provider's infrastructure (OpenAI, Azure, Anthropic)
- Backup and disaster recovery systems
- Subpoena exposure in litigation

Each additional party increases disclosure likelihood.

Factor 3: Cost of Safeguards vs. Adverse Consequences

Defending a malpractice claim built on a privilege waiver costs far more than any billing tool, and the premium increase that follows lasts for years. Against that, the incremental cost of choosing a tool that keeps processing local is small.

The math favors caution.

Factor 4: Difficulty of Implementation

"It's too hard to set up" isn't a valid excuse under Rule 1.6.

Local tools have become far easier to run. IntelliBill, for example, installs as one signed Mac app; first launch downloads its models and walks through Microsoft 365 setup with no Terminal work.

The Third-Party Disclosure Problem

Here's where most attorneys get tripped up:

Rule 1.6 protects against unauthorized disclosure. But what if you authorize a vendor to process your data?

When you click "I Agree" on a cloud AI tool's terms of service, you're authorizing data transmission to their servers. Under traditional privilege doctrine, this voluntary disclosure to a third party may waive privilege—even if the vendor promises confidentiality.

The "necessary agent" exception (the Kovel doctrine) may protect some technology vendors. But the exception has limits:

• The vendor must be "necessary" for the representation
• AI billing is arguably convenient, not necessary
• Sub-processors (like OpenAI) add layers of complexity

What "Reasonable Efforts" Look Like in 2025

Based on current ethics guidance and developing case law, here's what reasonable efforts should include:

1. Vendor Due Diligence

Before adopting any AI tool, review:
- Terms of Service (not the marketing page)
- Privacy Policy (especially data retention and third-party sharing)
- Data Processing Agreement (if available)
- Security certifications (SOC 2, ISO 27001—but understand their limits)

2. Data Flow Mapping

Know exactly where client data goes. Ask vendors:
- Where are servers located?
- Do you use third-party AI providers (OpenAI, Azure, Anthropic)?
- What data is retained after processing?
- Can you respond to subpoenas for client data?

3. Client Disclosure

Consider adding technology disclosures to engagement letters:

"Our firm uses technology tools to enhance efficiency, including artificial intelligence software. We select vendors with strong security practices. By signing this engagement letter, you acknowledge this disclosure."

4. Local Processing Alternatives

For matters requiring maximum confidentiality, consider tools that process data locally:
- No third-party cloud transmission
- No subpoena exposure to vendor servers
- Data stays under your direct control

The IntelliBill Approach

IntelliBill was built around the "reasonable efforts" standard:

Local processing. Classification, client and matter matching, and narrative drafting run on your Mac with bundled models. There is no cloud language model fallback; if the local model is unavailable, the scan stops rather than sending work elsewhere.

No OpenAI, Azure, or Anthropic in the loop. The app makes no API calls to external AI providers.

Read-only access you authorize. Microsoft Graph retrieves only the Inbox and Sent Items you approve, and your email stays in Microsoft 365 where it already lives.

Human review before export. Every proposed entry is reviewed by a person, then exported as a reviewed CSV for your billing system.

This is the architecture the confidentiality analysis points toward, and it is the reason the product exists.

Action Steps

1. Audit your current AI tools. Where does data go? Read the ToS.

2. Document your reasoning. If you use cloud AI, document why you believe it satisfies "reasonable efforts."

3. Update engagement letters. Disclose AI use to clients.

4. Consider local alternatives. For sensitive matters, tools with local processing eliminate third-party risk.

Conclusion

"Reasonable efforts" isn't a fixed standard—it evolves with technology and client expectations.

In 2025, reasonable efforts means understanding that "SOC 2 certified" and "encrypted in transit" don't address privilege waiver. It means asking vendors hard questions about data flows. And for sensitive matters, it may mean choosing tools that keep data under your direct control.

The attorneys who take this seriously now will avoid the malpractice claims and ethics complaints that are coming for those who don't.

This article is for informational purposes only and does not constitute legal advice. Consult your state bar ethics hotline for jurisdiction-specific guidance.

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