After the ABA's Formal Opinion 512, NJ Solo Attorneys Are Reading Their AI Vendor Agreements Wrong

ABA Formal Opinion 512, released in July 2024, got a lot of attention for what it said about attorney competence and AI disclosure. What got less coverage was the quieter implication buried in its analysis: that the duty of confidentiality under RPC 1.6 attaches not just to what an attorney does with AI output, but to what a vendor does with attorney input.

If you're a solo practitioner in New Jersey using a general-purpose AI tool, a legal research platform, or a document drafting assistant, that implication should change how you read your service agreement. Most attorneys aren't reading it that way.

Here's the practical problem. Formal Opinion 512 confirmed that when attorneys submit client information to a third-party AI system, that act itself can constitute disclosure under RPC 1.6. The NJ Rules haven't been formally amended in response to the opinion, but NJ RPC 1.6(a) has always prohibited disclosure of client information without informed consent, and the ABA's reasoning maps directly onto New Jersey's rule structure. The New Jersey Law Journal and the NJSBA have both flagged AI confidentiality as an active area of concern, even without a formal NJ ethics opinion on point yet.

So what does this mean for your vendor agreement?

The training data clause is the first place to look. Many AI platforms, especially consumer-facing or "freemium" tier tools, include language reserving the right to use your inputs to improve their models. Sometimes this is opt-in. Often it's opt-out, buried in a settings panel, and the default is unfavorable to you. If a client's facts, opposing counsel's name, or a confidential settlement figure ends up in a training corpus, you've got a disclosure problem you cannot walk back.

Look specifically for phrases like "we may use your inputs to train, fine-tune, or improve our models" or "your content may be reviewed by our team." Those aren't academic concerns. They're the exact scenario Formal Opinion 512 was addressing.

The data residency and retention terms matter as much as the training clause. Where is your data stored? For how long? Under what jurisdiction's laws? A solo firm in Bergen County using a vendor whose servers are in Ireland isn't just dealing with a storage question. It's dealing with a cross-border data transfer question that intersects with GDPR, with whatever contractual indemnification the vendor is (or isn't) offering, and with what happens if there's a breach.

NJ RPC 1.6(c) requires attorneys to make reasonable efforts to prevent inadvertent disclosure. "Reasonable efforts" in 2025 includes knowing whether your vendor's retention policy creates an exposure window long after you stop using the tool.

The SOC 2 Type II report is the document most attorneys never ask for. A vendor telling you their platform is "enterprise-grade" or "bank-level secure" in a sales call means nothing enforceable. A SOC 2 Type II report, produced by an independent auditor, tells you whether the vendor's actual security controls match their stated policies, and whether those controls were operating consistently over a period of time. You can ask for it. Most legitimate legal AI vendors will produce it. If a vendor refuses or says they don't have one, that's useful information too.

One concrete step you can take this week. Pull up the terms of service for every AI tool currently in use at your firm, including any your paralegal or assistant uses. Search the document for "train," "improve," "model," and "retain." Decide, for each one, whether the default terms are acceptable under RPC 1.6. If they're not, find the opt-out, negotiate the terms, or switch tools.

Formal Opinion 512 doesn't give attorneys a compliance roadmap so much as it confirms that the existing ethics rules already require one. NJ solo practitioners who treat vendor selection as a purchasing decision rather than a professional responsibility decision are working from the wrong frame. The agreement you sign with an AI company is an extension of how you handle client data. Read it like one.