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2026-10-07

New AI ethics opinions for litigators: depositions, recordings and opposing filings

Ethics bodies are addressing specific litigation situations: AI assistance during depositions, recordings of non-client calls, and errors in opposing filings.

Thursday’s deposition is on the calendar, and an associate wants software that transcribes testimony and suggests follow-up questions while the witness speaks. The witness is a non-party; the proposed upload includes medical records. Meanwhile, the team checking the opposition brief has found two citations to cases that do not exist.

Recent AI ethics opinions apply existing duties to deposition assistance, non-client recordings and errors in opposing filings. Missouri addresses deposition software; the New York City Bar addresses recordings; Virginia’s proposed opinion examines responses to opposing counsel’s AI errors. Lawyers must assess confidentiality, obtain required consent, verify work and bill honestly. At Turbo Law, we keep sources accessible for that review.

What do the 2026 AI ethics opinions say?

They address decisions lawyers now face during ordinary case preparation, without creating a nationwide permission slip for AI use. The distinction matters when someone forwards an ethics opinion with a message saying the deposition tool is approved.

Missouri’s guidance concerns deposition-assist software. The New York City Bar considers conversations with non-clients, including the consequences of recording them. Virginia’s proposal asks what counsel must do about errors in an opponent’s filing. Their scope and authority differ, and Virginia’s document remains proposed for this October 7, 2026 discussion.

Start with the actual assignment.

For Thursday, we would want to know whether the associate plans to upload the medical production beforehand, whether audio leaves the deposition room, and who receives the resulting transcript. Those details belong in the decision before anyone activates the software.

Can you use AI tools during a deposition?

Potentially, after reviewing the tool and the obligations attached to its use. Missouri Legal Ethics Counsel Informal Opinion 2026-09, adopted August 3, 2026, discusses confidentiality, consent, verification of outputs and fee disclosure in connection with AI deposition assistance. It does not endorse a particular vendor.

We would ask the associate to bring the proposed upload and the software terms to the preparation meeting. A medical production may contain information that never needs to enter the tool for the examination being planned. The witness’s willingness to testify also leaves a separate question about permission for the proposed recording and processing, which counsel should resolve under applicable law and orders.

Leave time to check the suggestions.

Suppose a suggested follow-up assumes that the witness received an incident report before an inspection. Before using that premise, open the report and the transmission email. An uploaded document may establish that somebody sent it; whether this witness received or read it still needs an evidentiary basis.

What do the 2026 AI ethics opinions say?

Start with the actual assignment.

Can you use AI tools during a deposition?

Leave time to check the suggestions.

Can AI record and summarize calls with non-clients?

Consent and confidentiality need attention before recording starts. The New York City Bar Association’s Formal Opinion 2026-2, dated August 5, 2026, says attorneys should obtain all participants’ consent and generally avoid recording absent a good reason in the particular circumstances. It also addresses storage, sharing and the risks to protected information.

Consider a call with a former employee about who approved a construction change order. Before sending the invitation, we would decide why a recording is useful and where it will go afterward. An automatic summary distributed to everyone on the invitation could include more than the team intended to circulate.

Check the meeting settings yourself. Under the opinion’s competence discussion, knowing how to disable recording matters too. Another participant may bring a separate recording tool, so our suggested opening question is whether anyone has enabled recording or transcription. Resolve that before discussing the file.

What must you do when opposing counsel files AI-hallucinated citations?

Verify the defect, then assess the applicable duties and procedural response. The Virginia State Bar’s May 27, 2026 notice concerning proposed Legal Ethics Opinion 1902 addresses identifying misstatements in opposing filings, advising the court and circumstances involving disciplinary reporting. It is a proposal, and should be described that way.

A failed search deserves another look.

Our suggested practice is to preserve the challenged passage and check whether a mistaken case name or reporter reference explains the problem. Request the authority when appropriate. Until the evidence supports more, describe what you could not locate and the checks performed; a nonexistent citation alone does not establish which tool produced it.

Candor also governs what your team says next. ABA Model Rule of Professional Conduct 3.3, Candor Toward the Tribunal, prohibits knowingly false statements to the court and requires correction of material false statements previously made by the lawyer. Its provisions also address known criminal or fraudulent conduct related to the proceeding. Apply the jurisdiction’s rule to the established facts before deciding what the court must be told.

How do these opinions fit with ABA Formal Opinion 512 and state law?

They apply the existing framework to more specific assignments. American Bar Association Formal Opinion 512, Generative Artificial Intelligence Tools, issued July 29, 2024, addresses technological competence under Model Rule 1.1 and Comment 8, confidentiality under Rule 1.6, communication, candor, supervision under Rules 5.1 and 5.3, and reasonable fees under Rule 1.5. It requires informed consent before entering representation information into the self-learning tools presenting the disclosure risks it describes.

California has also enacted legislation. Senate Bill 574, Chapter 858, Statutes of 2026, was approved September 30, 2026, and takes effect January 1, 2027. It adds Business and Professions Code section 6068.1 and amends Code of Civil Procedure section 128.7.

The law bars delegating legal practice to generative AI, requires reasonable verification and correction of AI output, restricts entry of confidential information into specified systems, and addresses disclosure in court submissions. It also requires personal citation verification by an attorney responsible for submitting a covered filing. Reuters reported the enacted requirements on October 1, 2026.

January is still ahead. For a filing due now, check the court’s existing orders and applicable rules; build the forthcoming California requirements into the preparation schedule for filings after the effective date.

What does an ethics-ready AI process look like?

It gives the lawyer handling the assignment a documented basis for proceeding and identifies who will review the result. We would put the following into the matter’s working instructions:

Review the tool terms. Save the terms assessed for this use, including the treatment of uploaded records and recordings. Document unresolved questions before the associate sends the medical production.
Record required consent. Identify whose consent is needed and for what activity. Keep the client discussion and any participant permissions with the assignment.
Verify against sources. Open the cited testimony beside the proposed summary. Check whether the witness adopted the premise or merely answered a narrower question, and record corrections before using the passage.
Assign supervision. Name the reviewing lawyer and leave a place to flag unresolved issues. ABA Model Rule 5.1 addresses managerial measures and direct supervision; the assignment email should make the reviewer’s role clear.
Explain charges. Check the engagement terms before adding a software expense. ABA Model Rule 1.5 requires reasonable fees and expenses and communication of their basis.
Keep usable logs. Preserve the assignment and its source set with the resulting work. We would also record the lawyer’s corrections so a colleague taking over the file can identify which version was reviewed.

Make the handoff explicit. If the associate leaves an unresolved transcript discrepancy in a comment, the reviewing lawyer should see that comment before approving the examination outline.

How does a confidential matter workspace support these duties?

It puts the source material and the work requiring review within reach of the lawyer making the decision. Our workspace reads the matter file and builds a connected picture of the case that updates as records arrive, so review and drafting can begin from shared case context.

Under our security commitments, client data is not used for model training, with contractual and technical enforcement. Client environments are logically isolated. Staff access requires an explicit support ticket and client-side approval; access, queries and exports are logged and exportable.

For a deposition assignment, our Assistant returns answers citing supporting pages and lines, or states that the file does not support an answer. Its exportable assignment history records the request, material read and resulting work product. It prepares work for attorney review and does not serve, file or send it.

Open the cited page.

A link lets the reviewer inspect whether the testimony supports the proposed inference. Turbo Law does not provide ethics advice or determine compliance, and firms must apply current law and rules in their jurisdictions. Before Thursday’s deposition, the responsible lawyer still needs to resolve permission for the proposed tool use.

FAQ

Do I need client consent every time I use AI?

The answer depends on the information, the tool and the applicable duties. ABA Formal Opinion 512 requires informed consent for the self-learning uses presenting the confidentiality risks it describes; boilerplate authorization is insufficient. Assess the proposed use before uploading the file.

Can I bill for time saved by AI?

Hourly billing must reflect time actually spent, including appropriate review, rather than hours the task would otherwise have required. A fixed fee remains subject to the agreement and reasonableness requirements.

Do I have to report opposing counsel’s fake citations to the bar?

A citation defect does not automatically resolve the reporting question. ABA Model Rule 8.3, Reporting Professional Misconduct, addresses known violations raising a substantial question about honesty, trustworthiness or fitness. It also contains confidentiality-related limits. Apply the governing state rule to what you actually know.

Is Virginia Legal Ethics Opinion 1902 final?

For this October 7, 2026 discussion, it is proposed. Check the Virginia State Bar’s official materials for its status before relying on it in a filing or internal ethics decision.

Sources