In this article, Justin Chia, editor of the UCalgary Tech Law Association Blog, explores the ethical implications of the use of AI in the legal practice.
Artificial Intelligence (AI) is beginning to play an integral role in many aspects of everyday life, including the law. The emergence of AI tools, such as ChatGPT, in the legal profession has raised ethical concerns regarding its appropriate role in the delivery of legal services. As the role of AI in the legal practice grows, so too does the importance of ensuring that it is used in a transparent manner that is consistent with a lawyer’s ethical obligations to their clients.
Canadian law firms and lawyers have begun to adopt AI tools in legal practice for its potential to increase the efficiency of legal service delivery and reduce costs for clients.[1] Lawyers have utilized AI tools to perform a variety of tasks, including legal research, discovery and contract review.[2] AI tools are also capable of assessing the viability of litigation or conducting contract review, though the extent to which AI is used in legal practice is not fully known.[3]
There are currently no ethical or legal requirements for lawyers to use AI in their practice. The Law Society of Alberta’s Code of Conduct does, however, include commentary on the level of technological competence that a lawyer must possess and the need to understand the risks and benefits associated with the use of technology in relation to the duty of confidentiality.[4] Advancements in AI and its potential benefits for client service may force lawyers to adopt these tools in their practice and take stock of their ethical implications.
AI has the potential to enable lawyers to deliver high quality legal services to clients in a cost-efficient and timely manner.[5] AI allows lawyers to perform tasks, such as legal research, in a more efficient manner. AI would reduce the number of billable hours charged by lawyers, which in turn reduces legal fees for clients.[6] AI can also provide lawyers with insights and analysis that they otherwise would not have identified.[7] As the adoption of AI tools in the legal profession becomes more widespread, lawyers and law societies must take increased measures to safeguard ethical obligations.
The Code of Conduct describes a competent lawyer as one who can apply the relevant, skills, knowledge and attributes in a manner that is appropriate to the client’s matters and the nature of the retainer.[8] A key component of the duty of competence is technological competence. A technologically competent lawyer must be capable of using technology relevant to the matter and understanding the risks and benefits of the technology in relation to the duty of confidentiality.[9] These requirements would presumably apply to a lawyer’s use of AI in legal practice.
A recent case of a lawyer in the United States using AI during a civil proceeding illustrates the ethical concerns regarding the use of AI in legal practice. The lawyer had used ChatGPT – an artificial intelligence chatbot capable of producing information in response to human prompts – to conduct legal research and prepare a memo.[10] The memo, which was included in court submissions, contained non-existent cases generated by ChatGPT.[11] The lawyer relied on ChatGPT to conduct these tasks, despite being unaware of its potential inaccuracy.[12]
In the Canadian context, a lawyer’s use of AI without first understanding the risks associated with its use would presumably violate the rule on competence. The lawyer in this instance was unaware of the potential for ChatGPT to produce false information, meaning he failed to understand the risks associated with the technology. Additionally, the lawyer should have informed their client that ChatGPT would be used to make submissions to the court. It also would have been necessary to obtain the client’s consent since the memo was generated entirely by ChatGPT and seemingly not revised by the lawyer. A lawyer exercising better judgement would have verified the report for inaccuracies and substituted their own expertise where necessary. This lawyer’s conduct would have constituted an unauthorized practice of law under section 106 of the Legal Profession Act, which prohibits any person, or in this case anything, who is not an active member of the Law Society from providing legal services to the public.[13]
Alberta courts have recognized the importance of safeguarding a lawyer’s ethical obligations to their client in relation to the use of AI. The Chief Justices of each of the three Alberta courts have urged lawyers to use AI responsibly and verify the accuracy of AI-generated materials before they are submitted to the court.[14] Courts in Manitoba and the Yukon have issued directives requiring lawyers to disclose to the court how and to what extent AI was used in preparing court submissions.[15] Despite the steps taken by Canadian courts to reconcile a lawyer’s use of AI with their ethical obligations, law societies have yet to follow suit.
[1] Teresa Scassa, “AI and Legal Ethics” in Florian Martin-Bariteau and Teresa Scassa Artificial Intelligence and the Law in Canada (LexisNexis Canada, 2021) at 6.
[2] Nicole Yamane “Artificial Intelligence in the Legal Field and the Indispensable Human Element Legal Ethics Demands” (2020) 33:877 Georgetown Journal of Legal Ethics at 878.
[3] Supra note 2 at 7.
[4] Law Society of Alberta, “Code of Conduct” (last modified 23 February 2023), online: <https://documents.lawsociety.ab.ca/wp-content/uploads/2017/01/14211909/Code.pdf> at 8-9.
[5] Supra note 3 at 882.
[6] Ibid.
[7] Ibid at 885.
[8] Supra note 5 at 7.
[9] Ibid at 8-9
[10] Kathryn Armstrong “ChatGPT: US lawyer admits using AI for case research”, BBC (27 May 2023), online: <https://www.bbc.com/news/world-us-canada-65735769>.
[11] Ibid.
[12] Ibid.
[13] Legal Profession Act, RSA 2000, c L-8, s. 106.
[14] Paige Parsons, “Alberta courts issue warning about the use of artificial intelligence in courtrooms”, CBC (12 October 2023), online: <https://www.cbc.ca/news/canada/edmonton/alberta-courts-warn-lawyers-about-ai-use-in-courtroom-1.6994204>.
[15] Ibid.
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