Lawyers could be sanctioned for not using artificial intelligence (AI) where it has the potential to improve professional ability, and for misusing AI where its use throws up errors and hallucinations.
A Legal Statement on Liability for AI Harms, published by the UK Jurisdiction Taskforce (UKJT), has warned that lawyers who fail to use AI for a task when a “professional exercising reasonable care and skill would have done” could be considered a breach of duty. However, the directive goes on to explain such circumstances would be “judged according to whether a reasonable professional of a comparable rank/specialism should have used AI in that context.”
When reflecting on when it is appropriate to use AI, the directive adds: “The possibility of breaches of duty arising from a failure to use AI reflects the fact that AI, in a professional’s hands, is a tool. The question of whether such a tool should be used, and, if so, how, is no different from that which arises in respect of any other tool available to a professional.”
Conversely, using AI where there is any oversight failure is “likely to be found negligent” although again the context is critical. In some cases, oversight might be limited to reviewing a specific output from an AI system before giving it to a client says the directive; in other cases, it may require the professional to identify and address the risk of errors and/or biases in an AI system and scrutinise the reliability of the output more generally.
The directive goes on to say where a third party suffers “physical or economic loss” in relation to the use or non-use of AI, professionals should expect to be held liable.
The report concludes that the common law system of England and Wales is flexible enough to address many legal issues arising from AI but there remain identifies areas where the law is uncertain, and the UK government needs to act to address these gaps.
The directive has been prepared by the UKJT’s drafting team of Matthew Lavy KC, Richard Munden, Lucy McCormick, Iain Munro, Isabel Barter and Jacob Turner, in consultation with a wider expert group comprising Prof Ryan Abbott, Lawrence Akka KC, Matt Frank, Prof Sarah Green, David Quest KC, Tom Whittaker, Prof Peter Wills and Michael Workman. It was overseen by Sir Geoffrey Vos, the former Master of the Rolls.
In June the Legal Services Board warned regulation has not kept pace with AI innovation,noting current “standard-setting activity takes the form of principles, recommendations, and best practice frameworks rather than binding requirements with enforcement mechanisms.” As a result, much of the regulation and standards were not designed with AI in mind and do not address AI-particular risks.
Responding to the report, Law Society of England and Wales vice president Brett Dixon said: “We welcome the UKJT’s work to clarify liability for AI harms under the common law of England and Wales, including when those who did not deliberately set out to cause harm may still be legally responsible.
“This represents an important step in recognising the interaction between AI systems and liability in private law. It also demonstrates that the law of England and Wales can respond to important AI developments around consumer protection, transparency and the value of regulated professions.
“The Legal Statement provides much needed clarity for our members on the circumstances in which a professional can be liable for using, or failing to use, AI in the provision of their services.
“While the Statement helps establish the law’s position, it also identifies some areas where the law remains uncertain which the government needs to address. These include whether product liability law applies to both AI-embedded products and standalone AI software as well as situations where harm occurs but negligence cannot be evidenced.”
