New York and AI: Notes for developers, deployers and lawyers
Lawyer or client usage of AI in audio or video calls
On December 22, 2025, the City Bar of New York’s Ethics Committee issued Formal Opinion 2025-6: “Ethical Issues Affecting Use of Al to Record, Transcribe, and Summarize Conversations with Clients” (the Opinion). The Opinion focuses on two scenarios: first, where the lawyer is recording, transcribing and/or summarizing a video/audio call with the client, and second, where the client is the party doing the recording, transcribing and/or summarizing.
The Opinion pointed out that, although lawyers and clients have been able to record phone calls for decades, artificial intelligence (AI) has added features on top of that recording capability by using:
- voice recognition technology not only to record words spoken, but to attribute those words to particular speakers to create transcripts, including in some cases use of biometric tools, and
- generative Al to impute meaning and intention to those speakers to create written summaries.
The Opinion points out that, not only does the person doing the recording need to comply with the consent requirements of state law, the person in control of the recording function person must also comply with the laws that “regulate the capture of biometric digital data (such as voices and images).”
When the lawyer is using AI for the recording, transcribing and/or summarizing the video/audio call with the client, the Opinion states that the lawyer must
- First, obtain the client’s consent.
- Second, the lawyer “also should consider what privacy and security safeguards are in place in an Al tool to protect the data, including where data will be stored and for how long, how data might be retrievable through discovery, whether the tool uses such data for training, and whether there is a right to data deletion.”
- Third, “the duty of competence implies that attorneys should independently review any recording, transcript, or summary of the conversation - whether prepared by another individual (other attorneys, firm employees, or clients), recorded through traditional electronic means, or generated by Al tools – to ensure that it accurately reflects the conversation.”
- Fourth, “attorneys need to acquire an understanding of the security features provided by the Al tool – and their limitations – in order to address the concerns about confidentiality and privilege discussed above.”
The Opinion points out that these steps are much more difficult for the lawyer if the client, rather than the lawyer, controls the recording, transcribing and/or summarizing the video/audio call. The Opinion recommends partial solutions, such as the lawyer requesting that the call not be recorded and/or, because the client and not the lawyer will control the storage of information, the lawyer advising the client of the risks of the loss of confidentiality and privilege.
As a general matter, lawyers should also train and supervise subordinate lawyers and other employees on the use of AI tools and related ethical duties consistent with Rules 5.1 and 5.3.
Our take
The City Bar’s ethics opinion may have a broad immediate impact on New-York-licensed lawyers, given the prevalence of video conference calls. Of course, other states may take a different position.