AI Headshots: Old Rules, New Tech, Same Risk

AI is here to stay. As lawyers and law firms grapple with incorporating AI into their substantive work product, client communications, case and document management, etc. the evolving use of AI in legal advertising and image creation highlights a dynamic tension between "old rules" of ethical guidance and the implications of "new tech."

Lawyers tend to be much more open to trying AI in the marketing/advertising space rather than for research or drafting but it is absolutely important to recall that advertising is far more regulated by the rules of professional conduct than actual legal work.

While creating attorney headshots with AI might seem like a minor innovation, it is the tip of the iceberg for AI marketing and this tech directly intersects with several longstanding ethical rules. As law firms increasingly leverage these tools, they must reconcile the benefits of AI against specific ethical nuances, particularly when it comes to the portrayal of attorneys and the potential use of actors or generated images that represent real or hypothetical attorneys.

Risk Management Considerations

1. Privacy and Data Security: Traditional ethical rules emphasize confidentiality and protection of personal information, a consideration that becomes more complex with AI. When law firms upload photos to AI platforms, they potentially expose personal information of attorneys and staff to third-party vendors. Unlike old models of in-house photography, AI platforms store, analyze, and may even share this data, requiring extra vigilance to prevent breaches or misuse. As these tools evolve, understanding data management policies is essential to mitigate privacy risks.
2. Authenticity and Misrepresentation: Unlike conventional headshots, AI-generated images may alter appearances or even use “actors” (AI-created or stock images resembling attorneys). This can lead to questions about authenticity, as AI tools sometimes create idealized or inaccurate representations. The ABA Model Rules strictly emphasize truth in advertising—images that don’t resemble the actual attorney risk misleading clients. Firms must consider whether the benefits of generated images are worth the potential ethical pitfalls and should prioritize authenticity in how they represent their team. Florida, New York, and Texas all have specific versions of Rule 7.1 that require disclaimers for the use of actor portrayals, which could easily be extended to AI generated images.
3. Bias and Fair Representation: AI has the potential to introduce or perpetuate biases in images, which can be problematic in a profession where trust, inclusivity, and fairness are paramount and obligated under Rule 8.4(g). Unlike traditional photography, which can be tailored to an individual’s preferences, AI algorithms may unintentionally generate stereotyped images, especially for underrepresented groups. Ensuring fair and accurate portrayals in advertising is critical, as bias in AI-generated headshots can erode a firm’s commitment to diversity and inclusion.
4. Intellectual Property and Licensing Issues: Old rules regarding intellectual property ownership now face challenges in the AI landscape. Some AI platforms retain licensing rights to the images they generate, which could limit a law firm’s control over its own branding materials. It’s important to confirm that generated headshots remain proprietary and unrestricted, avoiding potential licensing conflicts that could arise from ambiguously worded platform agreements. The AI platform's use of other parties' intellectual property is also a concern. Often shrouded in mystery, courts are already cracking open the lid on large language model generative AI in several high profile IP litigations, AI imagining could certainly be next.
5. Consistency and Control: While AI provides convenience, it may also yield inconsistent quality, making it difficult to maintain uniform branding across images. Additionally, using AI to create or modify headshots introduces a loss of control, which may result in outcomes that don’t align with the firm’s professional image. Maintaining quality control in a process involving AI calls for new protocols to ensure these tools enhance, rather than compromise, a firm’s reputation.

Pros

• Cost Efficiency: AI is often cheaper than traditional photography, making it an attractive option for firms, especially smaller practices, to maintain a professional online presence.
• Speed and Convenience: AI enables the rapid creation of images, supporting an efficient onboarding process and making it easier to keep team profiles up-to-date.
• Customizability: AI offers tools to alter or refine images, adding backgrounds, and applying specific lighting, giving firms the flexibility to customize headshots in line with their branding preferences.

Cons

• Risk of Misleading Images: AI-generated headshots or AI actors representing attorneys may create impressions that don’t align with reality. Unlike traditional, verifiable headshots, AI-created images introduce uncertainty about whether a firm’s advertising is accurate and compliant with ethics rules.
• Room for Error: AI-generated images can often include erroneous details - teeth, fingers, attire, every detail must be scrutinized for accuracy.
• Privacy and Confidentiality Risks: AI platforms pose potential privacy threats due to their centralized data storage, raising the possibility of breaches that can impact a firm’s reputation and client trust.
• Bias and Stereotyping: AI platforms might reinforce certain stereotypes or fail to represent the full diversity of a firm’s team accurately.
• Loss of Control over Image: Relying on AI can mean sacrificing some control over the final product, which can be problematic when creating precise, consistent professional images.

Ethical Considerations Under the ABA Model Rules of Professional Conduct

Several key ABA Model Rules come into play when considering AI-generated headshots and the implications of using actors in advertising:

1. Rule 1.6 (Confidentiality): The need to protect all client information has not changed, though AI technology complicates this old rule. Firms must evaluate the privacy policies of AI vendors and ensure that using these platforms won’t expose any confidential or personal information without sufficient protection and explicit consent.
2. Rule 5.3 (Nonlawyer Assistance): This rule requires lawyers to ensure that the conduct of any service providers aligns with professional obligations. This includes AI vendors, which must operate under standards that uphold privacy, nondiscrimination, and the truthful portrayal of attorneys. Diligence in selecting reputable, compliant AI vendors becomes crucial to prevent potential misrepresentation.
3. Rule 7.1 (Advertising): The longstanding rule against false or misleading advertising remains vital in AI applications. AI-generated images that inaccurately portray attorneys or use actors could mislead clients and run afoul of this rule. Law firms should avoid using AI images that look significantly different from the actual attorneys they represent, as clients expect authenticity in their interactions with a legal professional. Several jurisdictions require disclaimers when using actor portrayals, the same may extend to AI generated images.
4. Rule 1.1 (Competence): Lawyers must understand and competently manage technology. As AI becomes a more common tool, law firms need to remain informed about its capabilities and limitations. Using AI in a way that leads to misleading advertising or confidentiality breaches would signify a failure to meet competency standards.
5. Rule 8.4 (Misconduct): The old rule against conduct that reflects adversely on the lawyer’s fitness to practice law is equally applicable in AI contexts. Misuse of AI in headshots or creating headshots that appear artificial, biased, or inaccurate can harm a firm’s professional integrity. Representing a firm’s inclusivity and respect for diverse identities is vital to upholding a reputation that aligns with ABA ethics.

Old Rules, New Tech

AI offers convenience, affordability, and flexibility that didn’t exist under old rules designed for a less tech-driven era of oil painted portraits. Law firms can benefit from AI, but they must do so with a deep understanding of ethical boundaries. Leveraging AI to create headshots or use actors requires careful consideration of client expectations and ABA ethical mandates, particularly around authenticity, truthfulness, and data security. By respecting these foundational rules, law firms can effectively balance the advantages of new tech with the ethical demands of the legal profession.

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