There’s no denying it; Artificial Intelligence (‘AI’) is being used everywhere but when it comes to the law and legal advice, it may harm you more than it helps you.
Legal Professional Privilege
Legal Professional Privilege (‘LPP’) is the fundamental immunity in Australia that protects the confidentiality of communications shared between a lawyer and their client.
LPP exists so that clients can tell their lawyer anything and everything they need to know about a legal issue without the fear of self-incrimination or having to disclose intimate details to other parties that may not be relevant or required. This type of open and frank communication, protected by the veil of LPP, allows the lawyer to provide comprehensive legal advice to the client to promote their legal interests.
Generally speaking, legal professional privilege over a document is waived when a client chooses to share that document with a third-party. In situations where a client inadvertently or accidentally shares a privileged document with a third-party, there can be arguments to suggest that LPP has not been waived but these situations can be contentious.
LPP and AI
The most significant concerned raised by using AI in the legal field is:
Does a client waive legal professional privilege by using AI to review and draft otherwise confidential communications exchanged with their lawyer?
And currently, there is no definitive answer but there are plenty of warnings.
Various judicial and regulatory bodies including the Federal Court of Australia, the NSW Personal Injury Commission, and the QLD Law Society (to name a select few) have issued practice directions and guidance statements addressing the use of AI in legal practice and warn of the risks involved.
A Practical Example
1. In the lead up to a settlement conference, a lawyer provides their client with a detailed, written advice assessing the likely range of damages they could expect to receive if their personal injury claim was determined by the Court.
2. Because the client is busy and wants as much money out of the claim as possible, when they receive the written advice, the client uses an open-source AI tool like ChatGPT to request a summary of the document and identify any damages that could be increased.
3. The client then reverts to their lawyer with a list of AI generated suggestions to try and increase the assessment of damages (most of which either do not apply to their specific claim or have already been factored into the advice).
Has the client waived legal professional privilege over the written advice? If so, can the Defendant seek disclosure of the written advice and/or the client’s ChatGPT history?
The answers to these questions are contentious and may come down factors like:
a. Whether the client knew the information they input into AI was confidential and privileged
b. The type of AI software used (open or closed system)
c. The terms and conditions the client agreed to when they accessed the AI platform
d. How, or with who, the AI software retains and shares the client’s AI information
Conclusion
While AI can be an extremely useful tool in day-to-day life, its application in personal injury claims is likely to expose you to far more risk than reward.
If you are unsure about whether you have a personal injury claim or your rights and entitlements to compensation then the safest option is to seek independent legal advice and speak to a (human) lawyer.
