There have been instances in the US where lawyers who have used AI-powered tools to conduct legal research have been found to rely upon fabricated cases to build their claims. While AI-powered tools can increase efficiency, lawyers must be diligent and ensure they uphold their professional obligations as they navigate and use this new technology.

While we focus on the Australian environment, the principles are valid for other common law jurisdictions.

What are AI-powered tools?

AI-powered tools include any software, systems, or devices that incorporate AI to perform tasks, automate workflows, or make decisions. These tools are trained through techniques including machine learning, natural language processing, and deep learning to analyze data, identify trends and patterns, predict, and make decisions. AI-powered tools perform tasks more accurately and efficiently as they are exposed to more data.

There are AI-powered tools that have been designed for lawyers to improve efficiency, including tools that assist in document review, due diligence, drafting documents, e‑discovery, and legal research. Due diligence tools automate the document analysis process by reviewing vast amounts of data and identifying relevant information. Lawyers are also using AI-powered tools to research cases and legal concepts to complement their advice. Tools are also available that allow for predictive analysis of large databases of previous cases and judgments to establish patterns of case outcomes. These tools can inform matter strategy and predict the outcome of a client's case.

What are the concerns?

The rising uptake of AI-powered tools in legal practice is concerning where lawyers use the tools without appropriately considering their legal professional responsibilities. Lawyers are at risk of becoming reliant on largely unregulated technology, which is often not transparent in its operations, and which has unclear accuracy levels. While some tools are specifically designed for lawyers, most have not been developed with consideration to lawyers' professional responsibilities.

In Australia, AI is indirectly regulated by various legislation such as the Competition and Consumer Act 2010 (Cth), the Copyright Act 1968 (Cth), and the Privacy Act 1988 (Cth). There is no piece of legislation specifically established to regulate the use of AI. The Australian Government is expected to introduce stronger regulations and has recently released a Discussion Paper seeking stakeholder feedback to determine whether to approach regulating AI through mandatory or voluntary schemes³.

The improper use of AI-powered tools has consequences for lawyers personally and for the broader legal community. There is the potential for the misuse of AI-powered tools to cause a systemic issue in the legal profession if the quality of legal services is significantly reduced, and damages public confidence in the legal system.

Lawyer duties and responsibilities

There are many rules that regulate legal professional conduct which vary by state and territory. The LPUL and the ASCR form the core framework of uniform rules that require lawyers to act in line with long-standing legal, equitable and ethical principles of professional conduct.

Duties to the Court

A lawyer's duty to the Court and administering justice is paramount to any other obligation⁴. To uphold this duty, lawyers must not engage in conduct, whether in or unrelated to legal proceedings, that may mislead or deceive the Court, which means they must provide reliable and accurate information⁵. Lawyers have a complimentary duty to act with candor and honesty in all of their dealings⁶. Lawyers should not rely on AI-powered tools that may produce inaccurate case citations, incorrect information, or oversimplify legal concepts. Lawyers must review AI-generated information to ensure it is accurate, relevant, and justifiable before using it to avoid breaching their duties to the Court.

Duty to act competently and diligently

Lawyers must provide legal services in a competent, diligent, and prompt manner⁷. There is an expectation that lawyers understand the law and its application for their clients, and use technology to produce efficient and effective results, without compromising quality. Lawyers must have the requisite skills to harness new technologies, while understanding their limitations and parameters of use. Lawyers must choose AI-powered tools that are fit for their intended purpose and understand the risks of the technology, for example, the accuracy and potential biases of underlying data used to train the tool, whether that underlying data has been properly cleared for use, and the accuracy of any resulting information. Lawyers using AI-powered tools must scrutinize how the tool is trained, operates, and the results it produces.

Duty to act in the best interests of the client

Lawyers must act in the best interests of their client⁸. They must prioritize their client's interests over their own by providing quality services, maintaining loyalty, and impartially advocating for their client. Lawyers must ensure that using AI-powered tools does not damage the quality of their legal work by properly auditing and interrogating the information generated before using it or incorporating it in advice.

This obligation also contemplates the ethical billing of clients. Using AI-powered tools to complete billable tasks may enhance the efficiency and quality of the solicitor's work, making legal services more affordable for the client. However, when relying on AI-powered tools for legal assistance, lawyers must not charge the client as if they have used outdated, less efficient methods and technology.

Confidentiality and legal professional privilege

Lawyers have a duty to protect confidential information obtained from their clients⁹, and a veil of legal professional privilege that they must maintain for their client's benefit. When using AI-powered tools, a lawyer's obligation to not disclose confidential client information extends to ensuring the technology is secure and omitting sensitive details so unauthorized parties cannot access or share the client's details.

This is important particularly where AI-powered tools use machine learning and rely on previous data to produce responses. When dealing with client and matter information, lawyers may want to use these tools to assist in problem-solving, however, this is problematic as lawyers could feed confidential information to a third-party platform and not be aware of how this information is used, stored, or retained by the platform. This may compromise the security of confidential information and may breach a lawyer's duty to protect a client's confidential information. When using AI-powered tools lawyers must consider the risks and redact information to ensure confidentiality has not been breached and legal professional privilege is maintained.

Independence

Lawyers must not compromise their integrity and professional independence¹⁰. A breach of this duty arises when lawyers have not acted independently and blindly relied upon the results of AI-powered tools. In discharging their duty, lawyers must consider the inaccuracies and biases that can be embedded within these tools. Therefore, lawyers must not mimic the responses provided by AI-powered tools and instead use the information at a supervised level, not as the only source of their knowledge, to ensure they don't perpetuate any biases or use incorrect information.

Consequences: failure to fulfill professional obligations as a lawyer

The consequences of failing to fulfill legal professional obligations can be severe and extend beyond reputational damage. A lawyer that delegates their professional responsibilities to an AI-powered tool may face disciplinary action if their conduct amounts to unsatisfactory professional conduct or professional misconduct, depending on the extent and severity of the conduct. This can result in a lawyer having their practicing certificate varied, suspended, canceled, or refused for renewal if they are found to have used AI-powered tools improperly, resulting in failure to fulfill their professional conduct obligations¹¹.

In each state, the relevant Law Council or Bar Council has authority over consumer disputes and can issue orders affecting a lawyer or law practice, even if a complaint involves conduct that would not be considered unsatisfactory professional conduct or professional misconduct if proven. This can include cost orders or compensation orders, for example, if a lawyer overcharges for the time spent on a matter that they have used AI-powered tools to produce.

A principal of a law firm and supervising lawyers have an obligation to lead and oversee the work performed by lawyers within their practice. Developments in technology such as AI-powered tools and their use in the legal profession fall within the scope of their obligations to understand, challenge, and adopt in a manner that aligns with professional conduct obligations. A law firm principal must be cognizant that they can become liable for the lawyers under their supervision or associates within the firm where they are recklessly careless in not knowing about unsatisfactory professional conduct or professional misconduct occurring.

What should lawyers do?

Lawyers must continue to evaluate how they use emerging technologies with their professional conduct obligations at the front of mind. To do this, lawyers should:

• familiarize themselves with the applicable legal professional conduct rules and standards that apply;
• consider and ensure they have a sufficient understanding of AI-powered tools including any embedded bias and the accuracy of the data sources that the tools use to deliver their outputs;
• consult senior personnel and develop firm guidance on whether the firm allows the use of AI-powered tools and what procedures to follow;
• keep up to date with developments in AI, including the regulation of AI, and accompanying ethical concerns raised by stakeholders;
• analyze and scrutinize the tools before implementing them, and continue to supervise and review their uses to ensure they are appropriate and there is sufficient control over their uses;
• continue to develop legal skills and knowledge to maintain competence as a lawyer and prevent overreliance on AI-powered tools; and
• continue to uphold confidentiality and legal professional privilege by not distributing information to AI-powered tools.

The principals of law firms are responsible and accountable for the lawyers they supervise. If implementing AI-powered tools into a legal practice is suitable, law firms should educate their lawyers on how to use AI-powered tools both ethically and professionally and uphold a framework that ensures compliance with the LPUL and ASCR.

In summary

Incorporating AI-powered tools into legal practice requires a firm and the individual practitioners to have an understanding of the limits of the tools, their professional conduct obligations, and that the responsibility for advice remains with them, even when leveraging AI technology. Lawyers can embrace advancements in technology provided they remain conscious of the regulatory framework to appropriately navigate integrating AI-powered tools into legal practice.

Katherine Sainty Director
[email protected]
Julia Colubriale Graduate Lawyer
[email protected]
Sainty Law, Sydney

1. See: https://www.legislation.nsw.gov.au/view/html/inforce/current/act-2014-16a
2. We note that the ASCR have been adopted as the professional conduct rules for solicitors in South Australia, Queensland, New South Wales, Victoria and Western Australia, Tasmania, and the Australian Capital Territory. The Northern Territory currently is governed by its own professional conduct rules however these derive from the same legal principles as the LPUL and ASCR. See: https://lawcouncil.au/policy-agenda/regulation-of-the-profession-and-ethics/australian-solicitors-conduct-rules;https://legislation.nsw.gov.au/view/whole/html/inforce/current/sl-2015-0244
3. See: https://consult.industry.gov.au/supporting-responsible-ai
4. See: https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0244#sec.3-oc.2
5. See: https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0244#sec.19
6. See: https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0244#sec.4-oc.2
7. See: https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0244#sec.4-oc.2
8. See: https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0244#sec.4-oc.2
9. See: https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0244#sec.9
10. See: https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0244#sec.4-oc.2
11. See: https://legislation.nsw.gov.au/view/html/inforce/current/act-2014-16a#ch.3-pt.3.5