The Law Society balances the opportunities and risks that Gen-AI poses to the profession. In the absence of regulation, we look to other jurisdictions to help shape our own response to this evolving issue.
As the application of Generative Artificial Intelligence (Gen AI) is now increasingly proficient and prevalent, it is no longer just a hi-tech term in the language of IT specialists. With this technology becoming more readily accessible, the full scale of its impact, positive or negative, remains unpredictable as it continues to evolve. Despite its dynamic nature, we know one thing for sure – users of artificial intelligence technology tools have a responsibility to manage the risks that come with the opportunity.
Many industries have had a glimpse of what AI can offer, and the legal profession is no exception. Gen AI is rapidly emerging as a tool that opens exciting new opportunities for the provision of and access to legal services. However, there are also risks and ethical issues that need to be carefully managed.
In response to the rapid growth of the use of AI in the legal profession, the New Zealand Law Society Te Kāhui Ture o Aotearoa has released its first Gen AI guidance for lawyers, outlining the opportunities, risks and how to balance these while embracing AI’s potential in enhancing the delivery of legal services.
As smart and intuitive as Gen AI may seem, its limitations are clear – for example, Gen AI cannot understand its output, nor can it validate its accuracy, in the way a human author can.
“While there is no overarching regulation for the use of AI in New Zealand, all lawyers are ultimately responsible for the legal services they provide,” Law Society Chief Executive Katie Rusbatch says.
When lawyers use Gen AI tools in their work, “at a minimum, privacy, and fair-trading requirements will apply in addition to obligations under the Lawyers and Conveyancers Act (Conduct and Client Care) Rules 2008 (RCCC).”
The obligation to protect client information and ensure the AI generated content is accurate, factual and valid, sits with lawyers if they choose to utilise Gen AI in a professional setting.
One of the risks inherent with Gen AI tools is their ability to create seemingly persuasive but nonsensical or false content.
As concerns arise due to incidents where Gen AI has been misused, tools like citation checkers, are being developed to counter it. However, this does not obviate the importance of careful human oversight to facilitate the process ethically and responsibly.
“To mitigate the risks associated with the use of Gen AI, we’re urging lawyers to fact-check outputs and the accuracy and relevance of case citations and source references.
“Furthermore, it’s prudent to make sure that supervised staff do not access Gen AI to assist with work tasks unless authorised to do so, and that use of AI is disclosed to their supervisor,” Katie says.
The use of Gen AI involves inputting data into a tool to create content that matches users’ needs. As users enjoy the convenience and other benefits that Gen AI brings, it poses risks in privacy, data protection and cyber security. It can also give rise to questions about who owns the input and output data. Therefore, potential users are at risk of inadvertently infringing intellectual property rights.
“The public service guidance provided by Digital.govt.nz recommends against inputting personal and client information into external AI tools. The Courts of New Zealand guidance similarly highlights the real risks of inputting confidential or suppressed information into Gen AI tools,” Katie says.
“As we largely operate in an online environment, it’s crucial that lawyers familiarise themselves with CERT NZ’s cyber security alerts and guidance for businesses.
“To manage privacy, data and cyber protection, and legal risk, lawyers should also take extra care to consider an AI provider’s Terms of Service, ensuring contractual provisions do not potentially place a lawyer in breach of professional and legal obligations relating to legally privileged, confidential, or personal information.”
Gen AI presents exciting opportunities in the ‘Lawtech’ space for lawyers to embrace. However, lawyers must be cognisant that they are ultimately accountable for the quality and competence of the work they produce.
“Improper, negligent or incompetent use of Gen AI could lead to a serious breach of the Conduct and Client Care Rules. There are examples of lawyers overseas relying on Gen AI and unwittingly providing false authorities to the Court, with serious disciplinary consequences,” Katie says.
The Law Society Gen AI guidance reminds lawyers of their obligations to provide client care and service information, including who will undertake work and the way the services will be provided. A lawyer must also take a proactive approach to make sure that a client understands the nature of the retainer and consults the client about steps taken to implement the client’s instructions.
As the use of the technology develops, Katie adds that there may come a time when lawyers need to review their billing practices and the information that is provided to clients at the start of a retainer.
Like any evolving technology, opportunities for users are only limited by the imagination. A significant amount of work is happening both in New Zealand and internationally to set out expectations and guidelines to help safeguard users and the wider public from the application of AI.
“We’d like to extend our gratitude to the Law Society of England and Wales for sharing their guidance Generative AI – the essentials and allowing the Law Society to draw on and adapt it for the New Zealand context.
“The purpose of our guidance is to assist lawyers in navigating the complex environment of AI while exploring the opportunity to harness its benefits for more administrative tasks, such as engaging with potential clients via chatbots, summarising large quantities of information, generating templates and drafting documentation,” Katie says.
For full Gen AI guidance, please visit our website. You can also download the checklist adapted from the Law Society of England and Wales guidance, to view a summary of factors that lawyers should consider from initial exploration, procurement, use and review.