Lawyers could be sanctioned for failing to use artificial intelligence (AI) that could improve their professional performance, or for misusing AI that causes errors or illusions.
The UK Judicial Inquiry Commission’s (UKJT) Legal Statement on Liability for AI Harm warns that lawyers who fail to use AI in “work that could have been done by a professional using reasonable care and skill” could be found to be in breach of duty. However, the Directive goes on to explain that such situations will be “determined according to whether a reasonable expert of comparable rank/specialty should use AI in the situation.”
When considering when it is appropriate to use AI, the directive adds: “The potential for breach of duty arising from failure to use AI reflects the fact that AI in the hands of professionals is a tool. The questions of whether and, if so, how such tools should be used are no different from the questions that arise with respect to other tools available to professionals.”
Conversely, the use of AI in the presence of some kind of surveillance flaw is “more likely to be seen as negligent,” although the circumstances are still important. In some cases, oversight may be limited to reviewing certain outputs from the AI system before passing it on to the client. It may also require experts to identify and address risks of error and bias within AI systems, and to scrutinize the reliability of output more generally.
The Directive further states that professionals should expect to be held liable if a third party suffers “physical or economic loss” in connection with the use or non-use of AI.
The report concludes that while the common law system in England and Wales is flexible enough to deal with many legal issues arising from AI, there are still areas of legal uncertainty and the UK Government needs to act to address these gaps.
The Directive was developed by the UKJT drafting team of Matthew Lavie KC, Richard Munden, Lucy McCormick, Ian Munro, Isabel Barter and Jacob Turner, in consultation with a broad group of experts including Professor Ryan Abbott, Lawrence Akka KC, Matt Frank, Sarah Green, David Quest KC, Tom Whittaker, Peter Wills and Michael Workman. Directed by former Master of the Rolls Sir Geoffrey Vos.
In June, the Judiciary Committee warned that regulation has not kept pace with AI innovation, noting that current “standard-setting activity takes the form of frameworks of principles, recommendations, and best practices, rather than binding requirements with enforcement mechanisms.” As a result, many regulations and standards were not designed with AI in mind and do not address the unique risks of AI.
In response to the report, Brett Dixon, deputy chairman of the Law Society of England and Wales, said: “We welcome UKJT’s efforts to clarify liability for AI harm under common law in England and Wales, including where those who did not intentionally seek to cause harm may continue to be liable.”
“This represents an important step in recognizing the interaction between AI systems and liability in private law. It also shows that the law of England and Wales can respond to important AI developments around consumer protection, transparency and the value of regulated professions.”
“The legal statement provides much-needed clarity to members about the circumstances in which professionals may be held liable for the use or failure to use AI in the provision of services.
“While this statement helps establish the position of the law, it also identifies areas where the law remains uncertain that the government will need to address. This includes whether product liability law applies to both AI-embedded products and standalone AI software, and situations where damage has occurred but negligence cannot be proven.”
