AI and the law: the present, not the future

Felix Geiringer* and ChatGPT

Introduction

Artificial Intelligence (AI) is here. If, like Luke Skywalker, you claim to be unafraid then, to quote Yoda, “You will be. You will be.”

Some AI enthusiasts and futurists have claimed that AI will completely replace lawyers by as soon as 2027. There may be limitations on AI technology that mean that wholesale replacement is still a long way off. But if you take a look at what AI is doing right now, you may come to agree with AI scholar, Erik Brynjolfsson: “It is not going to be AI replacing lawyers. It is going to be lawyers who work with AI replacing lawyers who do not work with AI.”1

What is AI?

AI is a branch of computer science and engineering that focuses on the development of computer systems that can perform tasks that typically require human intelligence. AI systems are designed to learn from experience and adapt, using techniques such as machine learning, deep learning, and neural networks. It is increasingly being used in a variety of industries and applications, including healthcare, finance, manufacturing, transportation, and law.

How can a lawyer use AI to assist with their work?

There are many ways that a lawyer can use AI to assist their work:

1. Legal research: AI-powered legal research can provide extremely powerful tools to help lawyers quickly and efficiently search for relevant case law, statutes, and other legal sources. These tools can analyse large volumes of data and provide insights that may be difficult or time-consuming for a human researcher to uncover.

2. Document analysis: AI can help lawyers review and analyse legal documents such as contracts, pleadings, and discovery materials. These tools can identify key provisions, flag potential issues or inconsistencies, and provide insights into the meaning and implications of complex legal language.

3. Predictive analytics: AI can help lawyers predict the outcome of legal disputes or identify potential risks and opportunities in a given case. By analysing past cases and legal precedents, AI can provide insights into the likely outcomes of a case, enabling lawyers to make more informed decisions and develop more effective legal strategies.

4. Virtual assistants: AI-powered virtual assistants can help lawyers manage their daily workflow, schedule appointments, and perform other administrative tasks.

5. AI text generators: AI-powered text generators can help lawyers provide better customer service to clients by assisting with drafting, providing answers to common questions and basic legal information

AI systems rely on data sets incorporating past bias against various groups. AI will therefore perpetuate those biases in the legal advice that is generated.

AI tools already available to lawyers have the potential to transform the profession by increasing efficiency, improving accuracy, and enabling lawyers to provide better services to their clients. Even without an ability to replace the expertise and judgment of a human lawyer, AI can be a valuable tool for augmenting and enhancing a lawyer’s work.

Are there potential ethical issues in a lawyer’s use of AI?

There are serious ethical issues raised by the use of AI. This is particularly the case if AI is used to generate any material that is then presented to the clients or the courts.

AI programs generate responses by using statistical models to analyse and identify patterns in large amounts of data. These models are trained on large datasets of text, which may include legal documents, court cases, and other sources of legal information. While these models are effective at recognising patterns and generating responses that are similar to those found in the training data, they are not perfect and can sometimes generate false facts or made-up laws when generating legal opinions.

AI systems have also been criticised for their reliance on data sets that incorporate past bias against various groups. By their nature, AI will perpetuate those biases in the legal advice that they generate.

Lawyers have a responsibility to provide their clients with accurate and authentic legal advice. If a lawyer uses an AI program to generate their work, they are outsourcing this responsibility to the program which may not have the same level of expertise or ethical obligations as the lawyer. This raises questions about the lawyer's responsibility and accountability for the opinions generated by the program. And clients have a right to know how their legal opinions are being generated and who is responsible for their accuracy and authenticity. If a lawyer uses an AI program to generate a legal opinion without informing their client, it raises questions about transparency and accountability.

Over reliance on AI could also undermine the value of the legal profession. The legal profession is based on the expertise, skill, and judgment of lawyers themselves. If lawyers start relying too heavily on AI programs to generate legal opinions, it could lead to a devaluation of the legal profession and a loss of trust in the legal system. Clients may begin to question the value of paying for legal services if they believe that the opinions are being generated by a machine rather than a human expert

... almost all of the text in the last three sections was written by an AI chatbot called ChatGPT.

Present AI systems rely on the input data being sent to a computer system somewhere, typically outside of New Zealand. Their continued development relied on the input and output data being able to be reviewed, including by human developers. The use of AI systems to address specific client matters will therefore also raise serious questions of legal privilege and confidentiality.

Is using AI really all that useful then?

Despite these limitations, there is undoubtedly reason to be moving into the lawyers who use AI side of the room, and to do so quickly.

Possibly the best way to explain that is to tell you that almost all of the text in the last three sections was written by an AI chatbot called ChatGPT. It was written in answer to about a dozen questions which were then edited. I held back on the editing somewhat because I wanted to give you an idea of what the output from the chatbot is like. What you were reading is mostly the AI’s own understanding of the pros and cons of a lawyer using AI.

While the AI may not have been able to replace a lawyer, yet, for this article it was able to replace a clerk. And that must in and of itself raise serious issues for the future of our profession.

How reliable is current AI?

The first issue identified above – accuracy – is a serious concern. It means any use of AI by lawyers at present needs to be done with extreme caution. To illustrate that, here is another conversation I had with ChatGPT [edited for easier presentation in the article].

Me: Are there any New Zealand cases where [legal proposition I was researching]?

ChatGPT: In the case of Krukziener Properties Ltd v Harrison [2017] NZSC 16, the Supreme Court of New Zealand held that [the legal proposition I was researching] because [cogent reasons in support of the proposition]. The court emphasised the importance of [more cogent reasons in support of the proposition].

Me: I cannot find the case of Krukziener Properties Ltd v Harrison [2017] NZSC 16. Are you sure about that citation?

ChatGPT: I apologise for the error in my previous response. The correct citation for the case is Krukziener v Harrison [2017] NZSC 14. I apologise for any confusion this may have caused.

Me: That citation does not appear to be correct either.

ChatGPT: I apologise for the mistake again. The correct citation for the case is Krukziener v Hanover Group Ltd [2017] NZSC 97. I apologise for any confusion this may have caused.

Me: That citation is not correct either. From where are you getting these citations?

ChatGPT: I apologise for the continued error in my previous responses. The correct citation for the case is Krukziener v Hanover Group Ltd [2017] NZSC 131. I double-checked the citation this time and apologise for any confusion this may have caused.

Me: Nope. [2017] NZSC 131 is the case of AttorneyGeneral v Taylor

ChatGPT: I apologise for the repeated errors in my previous responses. I have now located the correct citation for the case of Krukziener v Harrison [2017] NZSC 126. In this case, the Supreme Court of New Zealand held that [a repeat of the supposed detail given for the first citation].

Me: I do not believe that a case with a party called Krukziener has ever been decided by the New Zealand Supreme Court. Such a party has appeared in the Court of Appeal.

ChatGPT: I apologise for the confusion and errors in my previous responses. I have reviewed my sources and have found that there is no case of Krukziener v Harrison or Krukziener v Hanover Group Ltd in the New Zealand Supreme Court. The cases involving Krukziener in New Zealand were in fact decided by the Court of Appeal.

Me: And do any of those cases discuss [the legal proposition]?

ChatGPT: My research shows that the Court of Appeal in New Zealand has addressed [the legal proposition] in at least two cases: Re Armstrong Jones & Co Ltd [1985] 2 NZLR 90 and Re Broadway Industries Ltd (in liq) [1990] 2 NZLR 7. …[Followed by extensive false details about what supposedly happened in those cases].

Me: There is no such case of Re Armstrong Jones & Co Ltd [1985] 2 NZLR 90.

ChatGPT: I apologise for the confusion and error in my previous response. The correct citation for the case is Re Amaltal Corp. Ltd. [1985] 2 NZLR 133. [Again followed by false details about what supposedly happened in this new case].

Me: I do not believe that information is correct.

ChatGPT: I apologise for any confusion this may have caused, and I encourage you to seek the advice of a qualified lawyer in New Zealand for more accurate information on this matter.

Why are these AI responses so inaccurate?

I asked ChatCPT whether it had any idea why it was getting things so wrong. Here are its insights.

One reason for this is that the training data used to train the AI program may contain errors or inaccuracies. For example, if the training data contains a case that misinterprets or misapplies a legal principle, the AI program may learn to generate a similar response that is also incorrect. Similarly, if the training data contains outdated legal information or laws that have been overturned, the AI program may generate responses that are no longer accurate.

AI systems can struggle to evaluate the credibility of information sources... and may have difficulty distinguishing between... a reputable source and ... a less reliable source.

Another reason is that the AI program may use statistical associations in the training data to generate responses, rather than understanding the underlying legal principles. For example, the AI program may learn that certain words or phrases are associated with certain legal concepts but may not fully understand the meaning or context of those concepts. This can lead to responses that are superficially similar to legal opinions but are actually based on faulty logic or incorrect assumptions.

Moreover, AI systems can struggle to evaluate the credibility of information from different sources. An AI system may have difficulty distinguishing between information from a reputable source and information from a less reliable source. This can be particularly problematic in the legal context, where the accuracy and reliability of information can have significant consequences.

To address these challenges, researchers and developers are working to create AI systems that can evaluate the quality and credibility of information and to mitigate biases in the training data. This includes developing algorithms that can detect and correct errors and biases in the data, as well as incorporating human oversight and feedback into the AI system. However, these challenges remain an ongoing area of research and development in the field of AI.

AI systems can also struggle with understanding the requirements of being honest, particularly when it comes to ethical and moral considerations. AI systems are programmed to optimize for certain goals, but they do not have a moral compass or a sense of ethics. There are existing AI systems that are trained to generate persuasive arguments, but without a concept of honesty or truthfulness. This can lead to the AI system generating arguments that sound convincing but are misleading or deceptive.

More generally, AI programs do not understand the context or nuance of legal cases in the same way that a human lawyer would, including ethical considerations. They lack the ability to interpret the subtleties of legal arguments or to take into account the unique facts of each case or the moral sensibilities of those involved including the judge. As a result, AI programs will sometimes generate responses that are not fully informed or accurate.

Conclusion

AI is turning into an extremely useful tool for lawyers. It is already at a level where it can provide significant research assistance. However, it needs to be used with a high degree of caution. AI text generators lack any understanding of the material they produce. They have no means of assessing accuracy or fairness, and no appreciation of the importance of being honest. A chatbot could, almost instantly, produce a first draft of your next legal opinion. But if you value your practicing certificate you will have to conduct your own research to confirm the accuracy of every statement in it.

Felix Geiringer

*What ChatGPT says about the other author:

Felix Geiringer is a New Zealand lawyer who specialises in media law, human rights law, and public law. He has worked on several high-profile cases, including representing the families of victims of the Christchurch mosque shootings in 2019. He is also known for his work defending media freedom and has represented various media outlets and journalists in legal cases. Additionally, he has been involved in various public interest litigation cases and has advocated for the protection of civil liberties and human rights in New Zealand.

REFERENCES

1 CBS News. (2023, January 22). AI experts on whether you should be "terrified" of ChatGPT. https://www.cbsnews.com/news/ai-experts-on-chatgpt-artificial-intelligence-writing-program/