Can Lawyers Ethically Use AI for Legal Research and Drafting?

Introduction

The rise of Artificial intelligence (AI) is taking the world by storm and law is not left untouched either. With popular AI tools like CoCounsel, Westlaw Can Lawyers Ethically Use AI for Legal Research and Drafting? Edge and Lawgeex introduced specifically for the legal field, contract management, legal compliance, research and even drafting have become much easier and efficient.

However, while promising efficiency, AI tools also bring in ethical concerns specifically for lawyers. In this article, we will discuss these ethical concerns regarding privacy and biases in research in detail.

1. Usage of AI in law

1.1 How is AI used in law?

The most common usage of AI currently in law is for legal research. A quick, specialized prompt can help research information much quicker and efficiently than manual searches. The other usages include legal advice, specifically for personalized situations and predicting outcomes.

Very recently, AI has also been developed to automate legal compliance and regulations for companies, including contract review for disadvantageous clauses and legal issues. Lawyers have also started using AI for drafting agreements, legal notices and even affidavits.

1.2 Benefits of AI

With AI, lot of the repetitive tasks in law can now be automated. This includes tasks like editing, proofreading, legal compliance and document or audit review for mistakes and suspicious transactions. Speed and cost of such clerical work also decreased significantly, saving lawyers and corporations a huge amount of time and money.

However, where there are benefits, there are also challenges. This is also the case for AI, which has raised a lot of ethical concerns regarding its usage in law.

2. Ethical concerns of AI in law

2.1 Generalized drafts and contracts

In many countries like UK (Law Commission Report, 2021) and USA (UETA and ESIGN Act), smart contracts are already recognised and declared enforceable. In India, any contract that meets all the requirements under the Indian Contract Act, 1872 is enforceable regardless of whether it is drafted by AI. Even in the case of Quoine Pte Ltd v B2C2 Ltd [2020] SGCA(I) 2, contracts made completely by algorithms were held as valid contracts by the Court of Appeal of Singapore.

However, the concern regarding using AI for legal contracts is about its generalised clauses. Usually, agreements are drafted as per the needs of the parties involved. They are tailored according to the situation to avoid any legal loopholes.

Unfortunately, legal drafts generated by AI are not yet able to attain that level of customisation. It still generates drafts from the samples in its dataset, which may lead to more generalised and vaguely phrased clauses. Legal supervision is still needed for AI-generated drafts to avoid legal loopholes and better enforceability.

2.2 Legal competency and false information

Everyone knows and remembers Karen Iovino, v. Michael Stapleton Associates, Ltd. 600 F. Supp. 3d 610, in which the lawyers had cited false case laws generated by AI without prior verification. This case highlighted the glaring flaw of AI: generating false information.

When the majority of the data available on the dataset is not verified, there is a high chance that AI can generate fabricated information to the queries. This phenomenon is known as ‘Hallucinations’, which can cause a lot of damage if left unchecked. Any legal research or advice generated by AI can be faulty and jeopardize you legally if not verified beforehand.

2.3 Client confidentiality and personal data

The issue of privacy has always been a concern with AI as seen through cases like Lloyd v. Google LLC [2021] UKSC 50. It becomes even more prevalent when it comes to client information that needs to be kept confidential by lawyers.

Any data retained by AI during the course of legal research or drafting contracts can be misused by third parties, such as the creator of the AI tool. Even other people can piece through the information using specific prompts with a public AI. No personal data provided to an AI is protected unless it is used by only a few known individuals.

Many countries have already introduced regulations to combat these issues:

· USA has California Consumer Privacy Act, 2020 (CCPA) that regulates AI and its automated decisions or ‘profiling’.

· European Union (EU) has the General Data Protection Regulation, 2016 (GDPR) in which Article 22 empowers individuals to challenge AI-based decisions.

· UAE has Personal Data Protection (PDPL), 2021 that regulates AI profiling.

· India has Digital Personal Data Protection Act, 2023 (DPDP) which regulates the processing of all personal data by companies and individuals through AI or any digital means.

2.4 Biases by AI

AI heavily depends on its datasets and past interactions to generate results. This makes the past biases reflect in current AI content. Using such results in contracts without proper verification can lead to hefty lawsuits if not faulty research.

Systematic biases against different genders, races and other marginalised communities can reflect in AI if most of the data provided has such biases. As observed in the case of United States v. Uber Technologies, Inc., 2021 where disabled users were shown longer wait times for their rides than others. Lawyers using AI legal tools need to be aware of such biases and evaluate the results carefully before using it.

2.5 Unauthorised to practice law

In India, Section 45 of the Advocates Act, 1961 penalises any unauthorised person under the Act practising law. The question that arises here is whether AI would be included in the definition of such 'person' as a virtual lawyer.

This is specifically for situations where AI is used for legal consultation without any legal professional supervising or reviewing its results. In such case, would an AI ‘practicing law’ be considered unauthorised to do so? Since there is no statutory law in India governing AI, questions like this are still left to speculation.

2.6 Accountability and liability for AI

In case of any mistakes caused due to AI, whose liability would it be? Would it be the responsibility of the developer of the AI or the lawyer using it?

The Court wouldn’t accept the defence that the AI committed the mistake. Instead, the responsibility would be shifted to the lawyer presenting the case since they should be verifying the AI-generated work before admission. The loss of the case and even costs borne by the client would then be responsibility of the lawyer.

In some countries like EU, proposed AI Act in 2021 establishes strict liability for the developers and owners of 'high risk' AI tools used in fields like law and healthcare. Similarly, UK has the Automated and Electric Vehicles Act, 2018 that holds liability of AI in vehicles on the owner of the vehicle. India, however, currently does not have any law like that.

3. Future and Solutions

Now that all concerns are discussed, let’s discuss the steps a lawyer can take to resolve them:

1. Review AI drafts and research carefully for false information, generalized clauses and biases.

2. Use private AI legal tools to avoid confidentiality breaches.

3. Use AI tools as an assistant for legal research and drafting, not a replacement.

4. Maintain transparency with clients on AI usage in your drafts and research.

5. Ensure you meet all the ethical regulations of your country.

Conclusion

With AI being the next step of development, it is crucial to learn how to use it in a manner that is more beneficial for your work. Proper oversight and verification can minimize a lot of the risks and concerns associated with AI and even increase your efficiency. In the end, AI is a good legal tool if wielded with care and precision.

About Author

Kumar Pallav is a passionate legal professional dedicated to exploring the evolving landscape of the law. With a keen interest in the intricacies of legal practices and their impact on society, Kumar shares valuable insights and analyses on various legal topics. Join him on this journey at www.worldwisecounsel.com to stay informed about the latest trends and developments in the legal field.

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