Association urges Civil Justice Council to go further to ensure transparency
Lawyers, unregulated people like costs draftspersons and litigants in person (LiPs) should all have to declare whether artificial intelligence (AI) has been used in creating any court documents, the ACL has urged.
It also outlined concerns about confidential legal papers being put through large language models (LLMs) like ChatGPT.
The Association was responding to a consultation issued by the Civil Justice Council (CJC) working group on the use of AI in preparing court documents.
The group, chaired by Sir Colin Birss, Chancellor of the High Court, suggested that litigators should have to declare that they did not use AI in preparing witness statements for trial.
But otherwise, so long as documents such as statements of case and skeletons bore the name of the legal representative who was taking professional responsibility for them, it said they should not have to declare whether they were created with the aid of AI.
The ACL acknowledged the potential of AI to “achieve efficiencies” in the conduct of litigation but stressed that it would “never replace the role of the individual who ultimately retains responsibility for the conduct of litigation”.
The response agreed with the CJC that the legal regulators have an important role and said there needed to be a common approach across all of them to ensure that regulated individuals were conducting litigation in “a responsible way”, including their use of AI.
But it outlined “significant concerns” about AI use by LiPs and unqualified costspersons and said the CJC needed to address regulatory gaps.
In the absence of any regulatory code covering them, “such unchecked use of AI could result in serious unintended consequences, such as LiPs inadvertently disclosing highly sensitive personal information to AI large language models or by generating court documents which are entirely inaccurate or hallucinated, resulting in significant wasted court time and costs”.
As a result, the ACL argued that it was “reasonable to implement rules for all court documents, regardless of the author,to contain a specific declaration regarding whether AI or an AI tool has been used in its creation”.
A “dual framework” was required: professional regulators should provide guidance and set standards of competence and conduct in the use of AI, while procedural rules should require transparency “to protect the integrity of court proceedings”.
The ACL added that there were “numerous cases” of solicitors signing bills of costs prepared by unregulated costs professionals which were later proven to be inaccurate.
“Therefore, the ACL considers that even court documents signed by a statement of truth should declare whether AI has been used. Further, it may be appropriate to include a specific qualification in the bill certificate or statement of truth that any AI-generated output has been checked by the signatory.”
This was especially important where the court or opposing party was usually not permitted to go behind a statement of truth or signature to a bill.
“On the other hand, court advocacy documents such as points of dispute and replies which are not signed by a statement of truth also should require a declaration confirming the legal representative accountable, to ensure that the recipient and the court have sufficient clarity as to the authorised person who has retained responsibility for this work.
“A declaration as to the use of AI should also safeguard against satellite litigation borne from incorrect or overly verbose legal arguments, saving time and unnecessary expense.”
The ACL surveyed members to inform the response and it said all respondents were concerned about the confidentiality risks posed by the use of AI, particularly in respect of LLMs. As a result, it argued that the declaration should be used to ensure that all signatories were bound by the same obligation for data protection.
The ACL said the declaration should only cover the use of AI to generate or materially alter substantive content, rather than for spell checking or formatting.