Guest post by Henry Fingerhut, technology and innovation policy manager at the Bar Standards Board
Fingerhut: New and sophisticated skills
It’s been just three and a half years since the first generative AI products came to market.
In that short time, there has been ample discussion across the legal community (at least some of which AI-written) about what it means for legal professionals, how it might be used in legal practice, and of course what risks it poses.
And there’s been significant change: legal professionals experimenting with new tools, and firms and chambers restructuring to capitalise on them.
The legaltech sector has also been quick to develop new AI-based products to support legal professionals and indeed provide new services directly to consumers, to help them to understand and resolve a legal need.
At the Bar Standards Board, we have a dedicated workstream on technology and innovation, and I’ve heard considerable enthusiasm at events that I have attended across the country for how technology can help the Bar.
Yesterday, we published our guidance on the use of AI and other technologies [1].
AI presents real opportunities to improve access to justice and to support barristers in day-to-day legal practice. We are committed to helping those we regulate to realise the benefits that AI offers safely and effectively.
To do that, we all need to understand and mitigate the risks.
These changes – and our guidance – are not actually about AI. Rather, they are about innovation: about how to practise law differently and to achieve better outcomes for clients.
This guidance does not introduce new ethical expectations; rather, it explains how existing duties and rules under the BSB Handbook apply when using AI and other technologies.
But this guidance also goes further – structured around the innovation journey, it provides a practical and risk-based framework to support barristers at all stages of adopting and using AI and other technologies.
We know from our technology at the Bar research [2] that barristers face structural barriers that can make it difficult to adopt new technologies, and they may wait for proof of impact before adopting.
We have therefore designed this guidance to help barristers identify where technology can make a positive impact and how to mitigate risk. Focusing on technology adoption and risk management principles can reduce the likelihood of harm. In practice, this means:
- Maintaining a baseline level of technology and AI awareness, to understand how new technologies may impact practice;
- Evaluating the risks, benefits and costs of new technologies before adoption;
- Ensuring IT systems and data governance are properly implemented, and considering the parameters and boundaries of use before actually using the technology;
- When using technology, being transparent, identifying potential errors, and protecting sensitive information; and
- Recognising that clients, solicitors and opposing parties may use AI tools and that this may impact your responsibilities even when you do not use the technology yourself.
These are new and sophisticated skills – the largest law firms have set up innovation teams to manage them – and the structure of the Bar means barristers do not always have the resources to use them confidently and competently.
We want to work with the profession to help barristers gain the competence and skills to use AI safely and effectively. To help us to do so, we have established a joint working group on technology and innovation with the Bar Council and we are grateful for that group’s feedback on this guidance.
The Bar Council can offer advice on technology issues to barristers, via its ethics helpline or guidance on its ethics hub.
We will also look to employ good innovation practice ourselves in managing this guidance – we will continue to work with and learn from our peer regulators, the judiciary and the profession.
We will engage with barristers and chambers to gather feedback, test and update this guidance as we observe how it operates in practice. We will continue to host and attend events across England and Wales to discuss the guidance and how innovation can help the Bar deliver for barristers, their clients and the public.
We welcome feedback from the Bar on how the guidance can be adapted and improved.
There is significant potential for innovation at the Bar as barristers seek opportunities to adapt their practice and improve working processes, with the right support.
We hope the principles in this guidance will help give barristers more confidence to safely and effectively use new technologies. We look forward to working with the profession to identify and share good practice and innovation in the legal sector.