AI must be used responsibly and to the benefit of clients. This means the risks AI presents should not be overlooked. To mitigate these risks, solicitors must have a working knowledge on what AI is before they use it.
Solicitors should ensure that their use of AI is fully consistent with their pre-existing professional responsibilities and duties to the courts and to their clients.
If, on reflection, a solicitor reasonably believes that using AI would interfere with any of their professional responsibilities or their aforesaid duties, then they should refrain from using AI in that instance. Failing to use AI responsibly or properly supervise its use could result in sanctions from the Society and/or referral to the independent Solicitors’ Disciplinary Tribunal. In certain serious circumstances the misuse of AI could result in contempt of court or criminal proceedings.
If a solicitor chooses to use an AI system, it is important that they at all times exercise caution and maintain effective quality controls over its outputs. Solicitors must never allow the use of AI to impair the quality of their work.
AI systems have the capacity to make mistakes and have been known to produce results which on first reading appear coherent but upon closer inspection are revealed to be erroneous. When an AI system makes a misstatement of this sort it is said to have “hallucinated”. Solicitors should be on guard against such hallucinations and should subject AI-assisted research to further review. Solicitors should always satisfy themselves that the information provided to them by AI is true and cross-reference it with authoritative sources. While AI can help with the first draft, it should not be responsible for the final draft. Solicitors should be particularly careful not to over-rely on unverified AI outputs since this risks inaccurate information and advice being given to clients or appearing in court.
Solicitors are reminded that the information they hold on cases and clients is personal data and as such they are responsible for protecting it.
Pursuant to this it is essential that solicitors understand what AI does with their data, how it is processed, who has access to it and where it is stored.
Many systems can save and retrieve inputs and outputs for later re-use as training data. If the option is available, solicitors should opt out of providing any data for training or service improvement purposes. AI use must comply with a solicitor’s duty to keep client information secure. Accordingly, solicitors should refrain from providing confidential information to an AI that is not directly managed by their firm since this is at risk of being leaked.
Certain uses of AI risk the loss of legal professional privilege.
For which reason the Society insists that solicitors never disclose to or upload onto unsecure AI systems, information or materials which are subject to legal professional privilege. To do so risks the waiver of privilege. Privileged information can only be provided to secure AI systems if the right policies and procedures are in place. It is essential that all members of staff know this.
Clients may be interested in knowing if AI is involved in their matters. Clear communication with clients should avoid any confusion surrounding the use of AI. On the other side, some clients are already using AI to help them with legal matters. This could create risks to the client and to the solicitor-client relationship. Solicitors should be alert to their clients’ use of AI to ensure that it is positive and productive.
Solicitors must be especially vigilant when it comes to using AI to prepare materials for court. Regardless of the solicitor’s intention, placing before the court false AI-generated information can be construed as misleading the court and the consequences could be severe. In the event that inaccurate AI-generated content is submitted to the court, solicitors should notify the court as soon as practicable.
AI is not a substitute for a solicitor; it can supplement their professional reasoning but cannot replace it. When using AI solicitors should ensure that their clients’ personal data is protected and privilege is preserved.
No matter how AI supports the profession, the responsibility for ensuring the accuracy of the legal advice given to clients and the veracity of the materials provided to the courts remains ultimately with the solicitor involved.
As AI continues to develop the opportunities and risks it presents will also evolve. Solicitors are advised to stay informed of these developments and maintain a professional curiosity in this technology if they intend to harness it.