Taskforce warning
Lawyers who fail to use artificial intelligence (AI) could find themselves on the wrong end of a negligence claim, according to a new legal statement from the UK Jurisdiction Taskforce (UKJT).
Published this week, the taskforce’s Legal Statement on Liability for AI Harms notes that although there is no AI-specific liability regime in England and Wales, existing English law is capable of determining whether and when a person may be liable for harm caused by the use of AI. Among its conclusions is that lawyers can be liable not only for using AI incorrectly, but also for failing to use it at all.
Whether a solicitor or barrister has breached their duty by failing to use AI, according to the statement, depends on whether “a reasonable professional of a comparable rank/specialism” would have used it in the same situation, a test that will draw on regulatory guidance as AI adoption becomes more established across the profession.
Among the examples given is a solicitor in the Business and Property Courts who fails to advise their client that an AI-assisted tool could be used to review a large volume of documents.
Other professions are also addressed. The statement cites a radiologist who does not use a cost-effective, accurate AI tool for identifying tumours, and an auditor who fails to deploy AI to detect anomalies across transaction volumes too large for manual review, as further examples of potential liability for not using AI.
Comparable space is given to liability for using AI incorrectly, with the taskforce listing several scenarios: failing to carry out due diligence on an untested tool, failing to explain to a client how the AI works, entering confidential material into an insecure system, and failing to identify errors or bias in the output.
The statement also addresses AI chatbots that communicate on a company’s behalf, concluding that liability is likely to arise where a business holds a chatbot out as speaking for it. There is no English case law on the point yet, though the statement notes that a Canadian court has held an airline liable for false statements made by its chatbot.
Operating under LawtechUK and chaired by Sir Geoffrey Vos, the Master of the Rolls, the UKJT is a government-backed body tasked with clarifying how English law applies to new technology. Its previous statements on cryptoassets and smart contracts have been adopted directly by judges.
Commenting on the statement, Matthew Lavy KC, chair of the UKJT’s drafting committee, said: “English law has long been capable of rising to the challenges of novel technologies, and we consider that it will be able to do so in relation to AI.”
The statement was published as several firms continue to invest in their own AI tools. Shoosmiths has rolled out Project Apollo, a contract review tool developed with Microsoft, Freshfields has partnered with Anthropic on legal AI tools, and Kirkland & Ellis has set aside $500 million to build its own platform.