A lawyer is serving as an advisor to a technology startup that is developing a new artificial intelligence product. The startup's CEO asks the lawyer to draft a 'disclaimer of liability' clause for user agreements that attempts to waive all responsibility for any harm caused by the AI, regardless of fault or negligence. The lawyer's ethical duty in this situation is to:
- ASuggest that the CEO seek a second opinion from another lawyer specializing in AI law.
- BAdvise the CEO that such a broad disclaimer is likely unenforceable and could expose the company to greater liability.
- CDraft the clause as requested, as the client is entitled to pursue its business objectives.
- DInform the CEO that the lawyer cannot draft any disclaimer of liability due to ethical concerns.
Show answer & explanationAnswer & explanation
Correct answer: B. Advise the CEO that such a broad disclaimer is likely unenforceable and could expose the company to greater liability.
As an advisor, a lawyer has a duty to provide candid advice, explaining the legal implications and potential consequences of a client's proposed actions. Drafting a clause that is likely unenforceable or legally unsound, without advising the client of these risks, would be a failure of this duty. The lawyer must inform the client about the unenforceability and potential negative ramifications.
Why the other options are wrong
- A. While a second opinion might be useful, the primary duty is for the current lawyer to provide competent and candid advice first.
- C. Drafting an unenforceable clause without advising the client of its flaws is a failure of the lawyer's advisory duty.
- D. While some clauses might be unethical, the lawyer's role is to advise on legality and enforceability, not to refuse all drafting related to disclaimers.
Lawyer as Advisor: Scope of Advice
A lawyer acting as an advisor must provide competent and candid advice on the legal implications of a client's proposed course of action, including potential risks, unenforceability, and consequences.
- Advice covers legal, moral, ethical, and practical aspects.
- Must inform client of limitations or unenforceability of actions.
- Goal is to help client make informed decisions.
Memory trick: Advisors Always Articulate Accurate Assessments.