Cutting Law

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Examining the Duty of Confidentiality owed by Attorneys to their clients in an Artificial Intelligence (AI) World. This piece was created for public consumption, education and discussion, with minimal use of technical jargon. It zeroes in on the duty of confidentiality owed by Attorneys to their clients in a world where AI pervades legal practice, systems and services.

Many Attorneys use Artificial Intelligence (AI) technologies built by third party software companies and developers to record and transcribe client interviews, note-take on Conference calls and meetings, conduct research on specific client-related issues with or without prompts, or create documents or correspondences’ drafts with or without specific client information or client-related issues using prompts.

A prompt is an instruction given to an artificial intelligence program or tool which determines or influences the content it creates (Oxford American Dictionary). For example, a prompt includes asking ChatGPT to draft a letter based on hypothetical facts provided by a client. 

Sometimes, the client’s consent is obtained. But, not in all cases. This is important because a client’s consent or waiver, whether expressed orally or in writing, or implied, is an exception to the rule governing Attorneys’ duty of confidentiality. The duty warns of disclosing or divulging critical information provided by a client about their case. The question is whether disclosing or divulging your client’s information to an AI tool or technology may constitute a breach of the duty of confidentiality owed to that client.

Let's examine the rule:

The Duty of Confidentiality

Most Commonwealth Caribbean jurisdictions and the United States have rules governing an Attorney’s duty of confidentiality owed to clients. This duty may include the rule not to disclose, or to avoid sharing, divulging or gossiping with and to third parties about the confidential information obtained from a client concerning their case, whether or not the client’s name is specifically mentioned. This duty also extends to other members of the Attorney’s legal team such as non-legal staff like clerks, paralegals, students and so on. Attorneys are even restricted from discussing matters with their spouses. 

In Guyana, Rule 1, sub-rules (1), (2) and (4) of the Fourth Schedule of the Legal Practitioners Act, Cap 4:01 containing the Code of Conduct for Attorneys provide that:

“1. An attorney-at-law shall so arrange his business and office to ensure that his clients’ affairs are treated with the utmost confidence.

2. Every attorney-at-law has a duty to hold in strict confidence all information received in the course of the professional relationship from or concerning his client or his client’s affairs and this information should not be divulged by an attorney-at-law unless he is expressly or impliedly authorised by his client to do so.

(4)…[Attorneys should] avoid indiscreet conversations or gossiping… even though the client is not named or otherwise identified…”

In Trinidad and Tobago, under Rule 23 sub rule (2) of Part A of the Third Schedule of the Legal Professions Act, Chap 90:03 containing the Code of Ethics, it is provided that,

“An Attorney-at-Law shall scrupulously guard and never divulge his clients secrets and confidences.”

In the United States, the Model Rules of Professional Conduct also state that an Attorney owes the duty of trust and confidence to their client to keep all information disclosed confidential, except and unless the client consents (Rule 1.6). 

Cautionary Considerations

Who Owns the Data?

While there are notable exceptions to the duty of confidentiality such as a client’s consent, attention should still be drawn to the dangers of sharing confidential client information with the AI world. Recently, social media users encouraged their followers to delete their chat histories from ChatGPT, one of the world’s most popular Generative AI, because of allegations that the tool is being trained on data provided by users. Training AI tools based on data provided makes the tools more predictable, efficient and likely productive to carry out tasks, provide more accurate responses and save time.

However, most artificial intelligence tools and technologies are built by non-lawyers even if the tool is later white labelled and modified by the lawyer. This means that the data and information disclosed or divulged by the lawyer to an AI tool may likely wind up becoming part of training data, viewable or accessible by unauthorised third parties, or become part of a databank which may become publicly accessible or bought by a successor software company through mergers, acquisitions or otherwise.  

In the world of AI, data and access to data is the foundation on which AI tools stand and are harnessed.

Obtain Client Consent First

Therefore, Attorneys should be weary of using AI tools and technologies without first obtaining their client’s consent and permission. This means that a client also has the right to say no. However, since the use of AI tools within legal practice, systems and services is becoming pervasive, from recording clients during consultations for faster notes, to drafting documents containing sensitive client information or inferences, should clients and Attorneys consider this as the new norm in the absence of consent?

Manage Your AI Usage Judiciously

In this AI age, where ownership of technology and data is volatile, open-sourced and lucrative business, there can be long term challenges of feeding AI technology with client information and personal identifiers such as age, location/jurisdiction, name and so on. There are also challenges to providing these tools with the novel facts and scenarios that may likely produce AI lawyers. While the desire for productivity and time-savings is a major advantage championed by advocates for AI, we should never lose sight of the sense of humanity, fairness, justice, safety and integrity envisaged by ethical rules like the duty of confidentiality. We have lived in a world without AI and succeeded. We can still succeed by using technology responsibly, ethically and conscientiously in a world filled with AI. 

Disclaimer: This article is not intended to be used as legal advice. If you require legal advice, please seek independent legal advice by contacting legal counsel of your choosing.