Currently in Canada the use of Artificial intelligence to perform legal research and writing is unregulated. Likewise, the use of AI to interact with clients, the court and third parties remains a wild west for the legal profession. However, lawyers will be unlikely to escape liability for the legal opinions, research or human interaction of AI assistants. Furthermore, client’s doing business in Europe will need to comply with the AI Act. If enacted the AI Act with be one of the first regulatory codes created for the governance of artificial intelligence.
In this article I will focus on key takeaways and actionable protocols for lawyers using AI for legal research and opinion.
Artificial Intelligent Legal Research
Research lawyers perform has changed dramatically since I began as a lawyer in the 1990’s. Simply put, there has been a major digital transformation. Remote access to reliable, credible and up-to-date legal databases allow most modern law firms to remain competitive. Physical space is no longer required for weekly and monthly law reports. More legal staff and lawyers are working from home.
The use of AI to conduct legal research appears to be the next step in the attempt to make the super lawyers of the future.
The European Union will be brining in rules that require disclosing AI generated content. I expect this will become the norm within the legal communities globally, including ours. Notifying the court and other lawyers that content was generated by AI will have an impact on the quality and cost of legal services.
AI regulations will likely establish obligations for creators of AI contingent on the level of risk from the artificial intelligence. Motor vehicles and medical devices with AI will automatically be considered high risk. Also AI systems that assist in legal interpretation and application of the law are high risk. This means those products used in Europe will need to be approved and certified throughout the life of the product.
AI systems that use cognitive behavioral manipulation of people or specific vulnerable groups are unacceptable risks and will likely be banned from Europe in the future.
Therefore, AI systems that perform legal research and opinion are at minimum a high risk to society. If the AI systems used for legal research use cognitive manipulation, they become an unacceptable risk. Law firms ensuring safety, transparency and accountability in these AI systems will be best protected from future regulatory framework. AI systems that actively prevent bias and discrimination are more likely to be compatible with the future legal framework.
Using AI Research and Opinion in Court
Although there are no current guidelines, lawyers filing legal briefs are best served confirming the following:
That any language drafted by generative artificial intelligence(such as ChatGPT, Harvey.AI, or Google Bard) has been checked for accuracy by a human being. If there is no confirmation contained in the legal brief filed with the court the assumption will be that the contents were created by a human.
I would also add a few key takeaways:
- The responsible lawyer check all legal research conducted by AI.
- Do not use AI systems that employ cognitive behavioral manipulation.
- Use applications that prevent bias and discrimination.
June 14 ,2023 the European Parliament took another step toward regulating artificial intelligence embedded in various products and services. Customer protection from the use of AI will be relative to the risk of the activity. If the use of AI for legal research is considered an unacceptable risk in Europe its use will be banned. The use of banned AI could be subject to heavy penalties and/or fines.
The use of traditional online research sites such as LexisNexis may not protect a lawyer from the use of AI because these online legal services are starting to embed AI in the service that is provided to the lawyers.
Lawyers should be setting up human compatible legal research AI systems. Being ahead of future AI regulation will not only protect clients it will help make lawyers better, stronger, and faster.