AI: Don’t push the button quite yet
The Solicitors Regulation Authority (SRA) needs to provide urgent advice on how artificial intelligence (AI) can be used in litigation in compliance with the Mazur ruling, the Law Society has said.
The call has been added to its guidance on Mazur, which has already been updated four times since the first version was published on 16 October, indicating how fast-moving the situation is.
We reported yesterday that CILEX has been granted permission to appeal Mazur to the Court of Appeal, even though it was not a party to the case.
The Law Society guidance now says: “The legitimacy of the use of AI to make key decisions in a case that would amount to conducting litigation if taken by an individual remains unresolved.
“This is a novel development that was clearly not within the contemplation of the drafters of the [Legal Services Act] 2007. There can be no certainty as to how a court might decide the issue if called upon to do so.”
This means that, if solicitors are not to feel “inhibited in exploring what uses of AI in legal services are desirable”, it is “vital that the regulator gives clear guidance on what is permissible as a matter of urgency”.
We reported last month that Garfield, the first regulated AI law firm, which specialises in debt collection work, had no concerns about Mazur as the technology was not conducting litigation.
One of the most notable changes through the various iterations has been the removal of initial advice that non-authorised people could sign statements of truth; now it just says they can draft witness statements.
This likely reflects uncertainty over the ruling’s interaction with the provisions in the Civil Procedure Rules that allow a non-authorised person to sign a statement of truth.
The guidance now addresses the distinction made by the courts – but not by the 2007 Act – between circumstances where the court is adjudicating on a dispute between parties, and where it is overseeing a non-contentious process.
The key case of Baxter v Doble, says the Law Society, “suggests that at least many of the activities involved post-issue in progressing proceedings consensually or where these are wholly non-contentious (such as non-contentious Court of Protection or probate proceedings) can be seen (if they otherwise would comprise the conduct of litigation) to fall outside the definition”.
The guidance adds: “The same principles would appear to apply to inquisitorial proceeding, such as coronial inquests, although the position is less clear given the express inclusion of statutory inquiries within the definition of ‘courts’ for these purposes.”
Other changes include noting that while both the firm and the individual carrying on litigation must be authorised, the 2007 permits an authorised person to carry on reserved activities through or for an unauthorised business or organisation in certain circumstances, including where it is a non-commercial organisation or where the person is working in-house.
Also on exemptions, the guidance note now says tribunal rules permit a party to appoint a representative, whether or not they are an authorised person (except they must be for immigration judicial review proceedings before the Upper Tribunal).
“The rules provide that anything permitted or required to be done by a party under the rules in question – or practice directions or a direction – may be done by the party’s representative.”
There are some exceptions, however, such as signing a witness statement and, in certain cases, signing an application notice and the sending of notice to go on the record.
Another addition is in the section on the consequences of breach, which says that “if you are involved in a case and are concerned that an unauthorised person in your organisation has conducted litigation on it, you will need to consider your duties as an officer of the court and what, if any, steps you need to take to rectify the position”.
Different judges may take different views as to what steps they would expect a solicitor to take in this situation, the Law Society goes on, and it advises practitioners to “familiarise yourself with the views of your local judiciary before deciding whether any formal application is required”.
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