By;

Oghenero Ewherido

INTRODUCTION

Artificial intelligence (AI) is increasingly being used by lawyers in modern day practice to increase the efficiency and accuracy of the services they render. Although AI offers numerous ground-breaking advantages, it is important to also consider the wider effects it has on various industries. The increasing use of AI in legal practise raises some important ethical considerations and concerns over other areas such as intellectual property, human rights, and the law of tort.

The ethical considerations are of particular interest to this article which will consider some questions that arise relating to artificial intelligence and intellectual property.

WHAT IS ARTIFICIAL INTELLIGENCE (AI)

The World Intellectual Property Organization has defined AI as “a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence, with limited or no human intervention.”¹

AI is the ability of a computer program to perform tasks usually associated with humans, to simulate the human intelligence system. AI ranges from Amazon’s Alexa to Google maps, to Tesla’s self-driving car to chess-playing systems.

DEVELOPMENT OF AI

The software enabling cars to drive themselves or allowing a computer to beat a human at a complex game like chess were generally considered impossible to develop 30 years ago.² These systems are now common today.

Even smartphones like we have them today were once considered to be a wild figment of the imagination, yet they are commonplace today. Developments like this point to the fact that AI has experienced an exponentially large growth rate, and this will not change soon. Statistics show that the AI industry is expected to have an annual growth rate of 20% in the short-term future.³

Currently, most AI systems require some form of human supervision, but in the near future, it is expected that, AI will no longer require such supervision. Technology and AI have expanded beyond our initial imaginations. It allows machines to perform tasks that were previously believed to be specifically within human ability AI is going to continue to grow beyond our imaginations and expectations. The possibilities currently seem endless.

It is this rapid growth that serves as one of the main drivers of what has now been termed a fourth industrial revolution, this revolution is global.

Businesses that do not currently incorporate AI into their operations will do so in time. AI impacts businesses positively by reducing costs and offering new revenue opportunities, so given the current growth rate of AI these businesses may be forced to incorporate it into their operations to be able to compete in the new market.

AI IN THE LEGAL INDUSTRY

Innovation in the technology industry has provided lawyers with tools that increase their productivity, efficiency, and accuracy. Some AI tools currently employed by the legal industry include solutions for e-discovery, expertise automation, legal research, document management, document analysis and generation, predictive analysis.

Nigeria’s legal technology industry is not left behind in these developments, and LawPavilion is at the forefront of the development of this industry. AI systems introduced to the legal industry so far include systems that can interpret agreements, draft agreements. Law Pavilion’s ‘Timi’ is an AI system capable of guiding users on the provisions of the Civil Procedure Rules of Nigeria.⁴

ETHICAL CONSIDERATIONS

Artificial intelligence (AI) is increasingly being used by lawyers in their practice to increase the efficiency and accuracy of the services they render. Although AI offers numerous ground-breaking advantages, it is important to also consider the wider effects it has on various industries. The increasing use of AI in legal practise raises some important ethical considerations and concerns over other areas such as intellectual property, human rights, data protection and the law of tort.

Currently, AI used in the legal industry serves as augmented intelligence, it generally enhances professional decisions lawyers make, for example, Law Pavilion’s ‘Timi’ which acts as a consultant for lawyers. The current developments are somewhat early developments in the possibilities offered by AI. AI integration into legal practice raises certain ethical questions. The developments we have witnessed in AI so far make it clear that AI can advance to a stage where it is possible to have ‘robo-lawyers’. These robo-lawyers will attempt to simulate human intelligence and give advice based on legislation and information from previous cases.

Section 2(1) of the Legal Practitioner’s Act states that “. a person shall be entitled to practice as a barrister and solicitor if, if and only if, his name is on the roll.” The Act only provides for a ‘person’ to be entitled to practice as a legal practitioner and AI systems are not classified as natural persons under Nigerian law. So, robo-lawyers will not be entitled to offer legal advice under the current laws.

Attempting to simulate human intelligence and giving advice based on this raises some questions. First, who will be liable for the actions of robo-lawyers. Another question is whether these robo-lawyers are entitled to give legal advice and serve as a legal practitioner. There is also a question of AI with bias.

The corporations that build and develop these robo-lawyers cannot use them to offer legal advice as they are not authorized legal practitioners. To be used in legal practice, these robo-lawyers will need to be employed or used only by legal practitioners. AI-generated advice or output cannot be directly offered to clients, a lawyer will have to authorise such work before it is passed on to clients. This means that the lawyers will bear the duty of care towards their clients in the use of these systems. This may prove more difficult than it appears because lawyers may initially diligently check the output of the systems and monitor the work performed by the AI systems. After a period of consistently being satisfied by these outputs, there is a tendency that lawyers may begin to simply sign off on work produced by AI systems.

The advice and information produced by AI systems are based on information fed to it and data collected from ‘the cloud’, what this means is that these systems may not give the best legal advice, they may be capable of simply giving restrictive interpretations to the law and the issues fed to it. Without the human component which includes emotional intelligence, the advice or information produced by these systems may not always be in the best interest of the client. If the client suffers because of such advice, under the watch of a qualified legal practitioner, the lawyer will be the one to suffer the consequences. It could be considered negligent handling of the client’s affairs contrary to the Rules of Professional Conduct (RPC).⁵

AI intelligence is largely based on data, when used in legal practice it is a likely possibility that this data will include confidential client information. Client’s personal and confidential data will be processed by complex machine learning tools. The involvement of these tools in processing client data, may raise additional issues with who takes responsibility for this data and ensures it is processed according to data protection laws. So, another ethical risk is the duty to protect confidential information from clients. In some ways this is not a new risk as client information is already routinely stored ‘in the cloud’, and because data analytics systems make use of data stored on the cloud. Legal professionals need to tell their clients about how their data is being stored and retrieved to comply with the provisions of the RPC.⁶ Legal practitioners must also ensure they take reasonable care in preventing the confidential information of their clients from being disclosed. ⁷

CONCLUSION

In adopting AI systems into legal practice, several factors and rules must be taken into consideration. Legal practitioners should ensure they fully understand the benefits and risks of adopting AI systems into legal practice. There are other areas impacted apart from ethics, these include human rights, intellectual property rights relating to artificial intelligence systems, cybersecurity and the role legislation must play in the technological industry.

Footnotes

1. WIPO Secretariat, ‘Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence’ 29 May 2020

2. Akintunde Agunbiade, ‘Artificial Intelligence & Law: A Nigerian Perspective

3. UBS, ‘AI’s coming of Age’, (https://www.ubs.com/microsites/artificial-intelligence/en/ai-coming-age.html), accessed 11th August 2021

References

4. Ope Olugasa, ‘LawPavilion set to release Nigeria’s first artificial intelligence legal assistant’ August 23 2018, https://www.vanguardngr.com/2018/08/lawpavilion-set-to-release-nigerias-first-artificial-intelligence-legal-assistant/, accessed 9th August 2021

5. Rule 14(5) Rules of Professional Conduct for Legal Practitioners 2007

6. (Rule 14(2)(b),(c) Rules of Professional Conduct for Legal Practitioners 2007

7. Rule 19(4) Rules of Professional Conduct for Legal Practitioners 2007

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.