Artificial Intelligence (AI) has taken the world by a storm. There is an ongoing AI race amongst powerful nations that often refer to its advantages – but there are serious legal and ethical concerns to consider that have far reaching consequences for everyone.

The Risks of AI

The use of AI decision making in the legal industry indeed has benefits, but once investigated further, it is clear to see there are risks associated with the use of AI. Just like humans, AI can possess bias qualities. Such bias occurs when the AI machine produces results that are prejudiced due to assumptions made during its learning process. One way this can occur is through the direct input of ‘dirty data’ (that is inconsistent, incomplete or containing errors) made by the AI’s creator which can have catastrophic consequences to an individual’s liberty if applied recklessly within the legal system.

An example of the misuse of AI can be seen within the UK, where a litigant presented fictious submissions in court to support his argument that were provided to him by ChatGPT. The litigant had no legal representation. During proceedings, he used four citations to back his argument. Upon inspection, the opposing counsel found that one case was falsified and furthermore the points used were not relevant to the judgement within each case. The litigant admitted he had used ChatGPT to source material for his defence.

This example presented leads directly onto another issue we face with AI decision making which concerns the ‘Black-Box Problem’. This problematic area of AI decision making occurs when the AI itself cannot justify how it has reached its decision. It is an important reminder to those using AI when dealing with legal matters to act with caution, as they will have to face the legal consequences of any mistakes the AI makes.

It is imperative within the legal industry to be compliant, specifically when dealing with confidential information and data belonging to businesses and/or clients. Breaches can often occur when the data is not controlled properly or when data is leaked to another party, without the consent of the individual. It is vital that we are conscious of this when inputting data into AI platforms and those using AI for legal matters should be clear on the following:  

·       Where will this data go;

·       Who handles and controls the data;

·       Who and what safeguards such data within the AI platform;

·       Are there risks to inputting confidential information into the AI platform if I do not know the answer to the above.

If the use of AI is to become embedded within the day to day practice of law firms, it is crucial that they can ensure that their clients data will not exposed or compromised. Therefore it is crucial that firms must make sure they are aware of how to use AI and ensure that they can provide training to ensure that they can mitigate against such risks. 

The Urgent Need to Regulate AI

The urgent need to regulate AI decision-making has been echoed across the globe by academics and by the European Union (EU) who have recently introduced the Artificial Intelligence Act (AI Act) which regulates the use of AI. The EU holds the use of legal AI that is ‘intended for the administration of justice and democratic processes’ as high-risk. At the time of writing this article, the UK has only adopted a cross-sector and outcome-based framework. The framework sets out five-cross sectoral principles for regulators to interpret and apply at their own will which includes accountability and governance. It is important to note that this framework does not pose a legally binding duty on organisations.  

Judges within our courts have only been issued with guidance that warns them of privacy risks when entering information into AI. In the absence of any direct legal or ethical safeguards, there is nothing to prevent the catastrophic consequences that can be caused from the misuse of AI. We’re seeing an accountability gap, and questions are bound to be asked of who is responsible if/when these machines cause harm.

As AI continues to evolve, it is imperative to harness its potential to drive advancements, including in the legal industry. It is crucial that we approach this new age with ethics as a priority. By doing so, we can ensure that AI is used responsibly whilst utilising the benefits, leading to a more efficient and effective legal system that will benefit all those involved.

Our expert lawyers are on hand to help you ensure your business is compliant, call us today or make an enquiry to speak to our team.