⚖️ Artificially competent

To: Hearsay Readers

After a Hollywood-worthy week of corporate governance drama, Sam Altman is back at the helm of OpenAI and it’s full steam ahead for the market leader in AI development. Ride that wave with today’s look at ethical uses of AI in the legal profession.

— Dylan Gibbs

TODAY’S DOCKET

  • Practice: Legal regulators publish guidance on AI use

  • Round up: Court challenge for Ontario’s gigantic spa, restaurant vaccination policy wasn’t wrongful dismissal, counsel scolded for judicial mind reading

LEGAL PRACTICE

Regulators adopt ethics rules for lawyers using AI

Robot dressed in lawyer's robes and sitting in courtroom

AI tools are negotiating contracts without human involvement and scoring better than the average aspiring lawyer on legal ethics questions. But can lawyers actually use the tools without violating their professional responsibilities?

We now have concrete direction from North American legal regulators. Last week, California published official guidance on the use of generative AI tools like ChatGPT. And British Columbia followed suit on Monday. Neither regulator is prohibiting or even discouraging AI use — they’re just saying proceed with caution.

Here are some of the key considerations:

  • Confidentiality: Some generative AI tools rely on user input to train the system. Lawyers shouldn’t be feeding confidential information into that sort of system — at least without client consent.

  • Communication: Lawyers should have upfront discussions with clients about generative AI use, covering potential risks and any associated fees the lawyer plans to charge for the technology.

  • Oversight: Generative AI tools should be treated like any other non-lawyer assistant. Lawyers are responsible for the output and need to review it carefully.

The common thread? Lawyers need to understand AI tools before using them. You can’t use the tech in an ethical way without at least a rough understanding of what’s under the hood. To get up to speed, BC’s Law Society recommends a practical guide for lawyers published in the Minnesota Law Review.

Issue to watch: California might also change the rules prohibiting unauthorized practice of law. The State Bar recommended a legislative review, saying there’s a risk of self-represented litigants relying on misinformation produced by generative AI. We’ll see if anything comes from the review, but it’s not a farfetched concern — a Canadian judge prevented a self-rep from using research prepared by ChatGPT earlier this year.

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HEARSAY ROUNDUP

Canadiana

🪵 An advocacy group is challenging Ontario’s decision to exclude some of the Ontario Place redevelopment project from an environmental assessment. The excluded part of the project is a large thermal spa run by a private company. Building the spa requires cutting down trees and filling existing aquatic areas. Ontario says the spa doesn’t need an environmental assessment, because it’s a private development. The advocacy group says it’s public — the province is the one pulling the strings, not the private company.

💉 An Alberta judge said it was okay for a Calgary restaurant to require employee vaccinations in 2021. One of the restaurant’s servers didn’t get a COVID-19 vaccine because of safety concerns. The restaurant responded by putting her on unpaid leave, and the server argued she was wrongfully dismissed. The Court sided with the restaurant. Even though Alberta didn’t require vaccinations for restaurant workers at the time, the restaurant’s policy was a reasonable and justified response to the pandemic.

🧑‍🎓 A former TMU law student is suing the school for misrepresentation. He says the school promised greater financial support and took advantage of him to market the program.

😰 A Saskatchewan judge criticized a lawyer who relied on anecdotal assertions instead of evidence and tried to explain the judge’s own decision to him:

The full and the only reasons I decided as I did in that case are contained in the decision itself. [Counsel] knows full well judges may only speak through their decisions and cannot otherwise publicly opine on any issues. To suggest some other motive is as improper as it is inaccurate…

Let me turn from the deficiencies in the plaintiff’s position and material to the merits of this application. Lest plaintiff’s counsel again misattribute some motivation to me in conducting my analysis and reaching my decision herein, I state unequivocally that I am simply applying the relevant legal principles to the evidence the plaintiff has chosen to place before me.

Paras 14 and 20

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