-
- Introduction
Artificial Intellegence (AI) has been discussed more comprehensively in part one of this two-part series: “Ethical impact on justice delivery in Ghana and the need to amend LI 2423”. In this article, I will discuss AI in Ghana and the legal ethical issues arising, which needs to be addressed before the Ghanaian legal system is overwhelmed with AI usages and non-usages considering the Legal Profession (Professional Conduct and Etiquette Rules, 1969 (LI 2423)[1] and Legal Profession Act 1960 (Act 32).
The above referenced Act and LI regulate legal practice and ethics respectively in Ghana. In my discussion of the subject-matter, I will further analyze the Act and the LI with other foreign jurisdictional rules and consider whether pragmatic steps ought to be taken to amend portions of the Act and or the LI to meet modern legal practices as far as AI use in the justice delivery system is concerned.
Furthermore, the thrust of the article will consider ethical matters in respect of the use of AI. My discussion will cover duty of competence, a duty of supervision, a duty of communication and duty of confidentiality[2]. The article further briefly discusses essential points to consider when adopting AI and the pre-requisites desired by a vendor coupled with recommendations.
- Essential ethical duties of AI that arise between lawyer and client
- a) Duty of Competence
Act 32 and LI 2423 are profound in regulating legal practice and ethics in Ghana. Unfortunately, the aforementioned authorities do not have inherent provisions that deal with this subject-matter or neither has these laws caught up with the technology to provide ethical rules for on its use. The issue of competence of a lawyer is defined in LI 2423, which deals directly with the legal ethics of lawyers:
“Competence 6. A lawyer shall provide competent representation to a client in the form of legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
The above provisions as quoted from LI 2423 provides that lawyers should demonstrate knowledge, skill, thoroughness and preparedness towards every case. This definition was directly copied from The American Bar Association definition on (ABA) duty of competence per its Module Rule 1.1 as LI 613 being the old law had no direct definition on this term. Lawyers must uphold dignity of the profession and be honest with their clients, the breach of which constitutes misconduct. The point of duty of competence comes up in AI’s use and non-use by lawyers on the grounds that lawyers must have a degree of knowledge in technology for practice purposes. The American Bar Association defined (ABA) duty of competence per its Module Rule 1.1 as:
“Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
According to Hedda Litwin, 2017 the duty of competence is the hallmark of a lawyer. The above definition has four main ingredients worth considering; that is, the duty of competence owed by a lawyer to his client. The lawyer must first and foremost have legal knowledge. This goes without saying that the lawyer will be involved in research and other legal inquiry to solve the client’s case. Skill is much to do with the lawyer building on its craft. Good lawyers are lawyers who have nurtured their skill or craft to handle cases whether complex or normal. A lawyer who does not hone his skill will be left behind by his peers. Honing the legal skill means the lawyer must reach out wide to learn from best practice in the industry. He must also learn how modernity is shaping legal practice with technology and the need for the lawyer to embrace AI for his own good.
A lawyer is expected to be very thorough in the delivery of legal services, Predominantly in a review of transactions, documents and the outcome of cases. Interestingly there are AI products that address all these needs, but for the degree of knowledge of the lawyer in technology to increase his deliverables, his legal service will not be competitive and will be left behind. Finally, preparation is the bedrock of the industry of a successful lawyer. Thus, whatever advice, review, consultation, mounting or defending, an action for a client hinges on the preparedness of the lawyer. A poorly prepared lawyer for legal service deliverables to his client is bound not to be successful in practice.
Generally, the duty of competence is meant for lawyers to be informed and up to date on current technology[3]. The above American Bar Association rule 1.1 notwithstanding, was amended to read:
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.”
According to Litwin, 2017,[4] the amendment emphasized the importance of technology in practice in this modern era. The report[5] by the ABA indicates that the duty of competence requires lawyers to be informed and up to date on current technology. On the contrary, as modernity has overreached legal practice such fundamental ethical provisions are absent from the above referenced rules The whole sense of the ABA amended rule is for lawyers in the USA to be abreast with the growing wave of technology and for lawyers to adopt them in the practice of law.
The most important thing is that legal stakeholders must understand that technology has met legal practice at the cross-roads and it is ripe for them to stoke discussion concerning the subject-matter. Further to this, they must shape practice in this area by giving policy direction which would yield into rules governing AI use and non-use in legal practice. The LI must have provided therein just like the ABA rules and not necessarily copy verbatim but learn from best practice such that it can be incorporated into our rules to be incorporated into our rules. Where this is done, it orients the minds of local lawyers in the jurisdiction of the way taken and the path to trend. It is not enough for one to say we know what is expected of a lawyer and a client. This is not the proposition in advance jurisdictions else their lawyers would not be whisk up in a certain practice direction.
Some lawyers and firms in Ghana are already using AI technology anyways and it beckons on stakeholders in the legal industry to amend the rules to better fit ethical practices for its use and non-use amongst lawyers.
- Duty to Communicate
Lawyers owe a duty to communicate their legal advice or information on cases to clients once their legal services have been sought. LI 2423 per section 11 provides that:
“Communication with client 11. (1)
A lawyer shall (a) promptly inform a client of a decision or circumstance. with respect to which the informed consent of the client is required by these Rules; (b) reasonably consult with a client about the means by which the objectives of the client are to be accomplished; (c) promptly comply with reasonable requests for information; (d) consult with a client about a relevant limitation on the conduct of that lawyer where the lawyer knows that the client expects assistance not permitted by these Rules; and (e) explain a matter to the extent reasonably necessary to permit a client to make an informed decision regarding the representation. (2) A lawyer shall avoid offensive or provocative language and ensure that correspondence or other communication sent to a client is courteous.”
There is a difference in the meaning of legal advice and legal information as far as a lawyer-client relationship is concerned. The Supreme Court case of BPE Solicitors vrs Hughes Holland [2017] UK SC 21 clarified the distinction in terms of associated liabilities. Per the above-cited case advice is where a lawyer advice on a matter or transaction and is under a duty to consider all relevant matters at stake including the full range of risk associated with the matter or transaction. The lawyer will be liable in principle if found negligent for all or part of the advice given where losses flow from the advice. On the contrary, the Court indicated that information, is where the lawyer provides information to the client in respect of a transaction or matter. Now, the information provided by the lawyer to the client is specific on a question to the matter or the transaction and not extending the whole but limited and does not cover the whole range of risk as it is with advice. It is only limited to the piece of information given by the lawyer. The lawyer will only be liable to the piece of information rendered.
The point of communication needs to be addressed ethically. This is because, where lawyers use AI in service delivery to a particular client the lawyer should be bound by ethical standards to communicate to the client his or her use or non-use of AI products. Further to this, the said use will have a correlative effect on legal fees chargeable. AI should have a correlative effect on legal fees chargeable Since this is an emerging technology, it is not captured in any form in LI 2423 or Act 32. I must mention that ordinarily lawyers are bound to communicate advice or information to their clients when the latter solicits for same and whatever communication between both parties are confidential per section 100 of the Evidence Act 1975.
Simpliciter, where a lawyer desires to use or employ AI in its service, he or she needs to communicate this to the client for the client to accept the associated risk of the AI including the increased cost thereon. This can only be achieved by incorporating ethical rules into LI 613 to deal with it. This leads me to my next point, duty of confidentiality per the use of AI.
- Duty of Confidentiality
The duty of confidentiality between a lawyer and client is that of privilege under the Laws of Ghana. This is specifically provided for under section 100 (1) (d) of the Evidence Act 1975 N.R.C.D 323.
“a communication is “confidential” if not intended to be disclosed, and made in a manner reasonably calculated not to disclose its contents, to third persons other than those to whom disclosure is in furtherance of the client’s interest in seeking professional legal services or those reasonably seeking professional legal services or those reasonably necessary for the transmission of the communication.”
From the afore-quote, a lawyer cannot divulge confidential information to third parties without the client’s consent. LI 2423 further regulates this subject-matter and provides as such:
“Confidentiality of information 19.
- A lawyer shall not reveal information relating to the representation of a client unless (a) the client consents to the disclosure; (b) the disclosure is necessary in order to carry out the representation; or (c) the disclosure is permitted under these Rules or any other law.
- Despite subrule (1), a lawyer may reveal information relating to the representation of a client where the lawyer reasonably believes that the disclosure is necessary (a) to prevent reasonably certain death or substantial bodily harm; (b) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another person and in furtherance of which the client has used or is using the services of the lawyer; (c) to prevent, mitigate or rectify substantial injury to the financial interest or property of another person that is reasonably certain to result or has resulted from the commission of a crime or fraud by the client and in furtherance of which the client has used the services of the lawyer; (d) to secure legal advice about the compliance of the lawyer with these Rules; (e) to establish a claim or defence on behalf of the lawyer (i) in a controversy between the lawyer and the client, (ii) in respect of a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or (iii) to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (f) to comply with a law or an order of a Court.
- Subrule (1) continues to apply after the relationship of lawyer and client has ceased.”
While the LI provides that confidentiality is solemn and must be preserved it provides exceptions under which the lawyer can share such disclosures.
The point of confidentiality raises its head in the use of AI, where lawyers’ or law firms engage AI products provided by third party companies. The information of the lawyer’s client is uploaded unto the AI platform of third-party companies. This cannot be the case as the client must consent to whether his/her confidential information can be transmitted to a third-party company for storage or predictive analysis of the client’s case. As far as the LI 2423 is concerned, there is no provision which deals directly deal with this. But one may infer that the LI indirectly deals with it given consent and its exceptions provided. It must be said that with LI 2423, even though it repealed LI 613 shows no contemplation of AI and ethics. The remainder is that some lawyers and law firms are already using varied forms of AI and hence, the relevance of the topic and possible amendment of LI 2423. Data Protection Act 2012 Act 843 and Cyber Security Act 2020 Act 1038 deals with the position of the law on the subject-matter in respect of user which includes lawyer, LI 2423 is a specific legislation which deals with ethics and acts of lawyers and by that an amendment of same should be effected to bridge up with the pace of technology and the law.
On the other hand, the ABA rule 1.6 (c) is not much different from the quoted section of the Evidence Act and provides that:
“(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
Similarly, the general provision of the ABA as quoted above provides that the lawyer must seek consent and have frequent consultation with the client. It is important to note that, some AI tools may require client confidences to be shared with third-party vendors[6]. Where lawyers of law firms seek to use AI tools to store data or information of clients with third-party vendors, it concerns not only ethics but compliance with the Data Protection Act, 2012 Act 843. It is very important for lawyers to discuss with their client’s third-party AI vendors’ and the confidentiality safeguards therein. The consent of the client is very critical as the lawyer cannot share the client’s confidential information without the client’s consent. It cannot be the case that the lawyer shares the client’s information for storage by a vendor without the client’s knowledge.
- Duty to Supervise
From the foregoing, I have been able to establish the importance and use of AI by lawyers and to an extent non-lawyers in the provision of legal services to clients. The AI product used is not absolute on its own. It is subject to control and direction. The lawyer must be duty-bound to supervise whatever work that the AI performs and/or non-lawyers using AI to achieve legal outcomes. The construction of duty on the lawyer is one of ethics. I have harped the point that, AI is not alien to the Ghanaian legal space and the question remains, what ethical rules govern lawyers on the supervision of its use? The answer is nil. This is because LI 2423 does not deal with the challenges faced in the modern age even though it was promulgated in the 2020.
Comparatively, the ABA module rule 5.3:
“Responsibilities regarding non-lawyer assistance
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for the conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fail to take reasonable remedial action.”
The above-quoted rule deals with regulations of acts by non-lawyers in the law firm. I must point out that the under-reference rule makes it a must for lawyers to have direct supervisory authority over non-lawyers to comply with ethical rules of the legal industry. It is imperative to say that where the lawyer employs third party AI vendors to store information, same ought to be disclosed to the client to consent or not. Where AI will assist in case outcomes, there still ought to be disclosures and there must be stern supervision from the lawyer, failure on the part of the lawyer to duty will make him liable to ethical sanctions.
These rules, as a matter of fact, need not be alien to the Ghanaian legal jurisdiction. The point is, why fail to incorporate AI rules of ethics into LI 2423 when some lawyers and or law firms are using the products anyway. To a large extent a client is the one cut out of necessary disclosures and decision-making by lawyers for the use or non-use of AI per the client’s case.
- Recommendations
- Legal stakeholders such as the Ghana Bar Association and the General Council should hold an ethical conference of dialogue on this subject-matter for the policy direction of AI use in the country.
- Stakeholders should lead educational seminars through Continuous Legal Education (CLE) for lawyers on the subject-matter and the changing dynamics in modern law practice.
- Discussions on possible amendment of LI 2423 and Act 32 in light of best ethical practices per the use and non-use of AI.
- Conclusion
It cannot be relegated that law practice has evolved and same has not come forth in isolation. The changes and development in the legal practice are driven by technology. Lawyers in this modern time need to understand this. Lawyers need not be technology experts but only need to appreciate how the technology works so they use it to further legal service.
A critical part of this article reminds the lawyer and legal stakeholders that there needs to be greater consultation ethical use or non-use of AI technology in the Ghanaian legal practice. This is because, the technology is already being used by some lawyers and firms. The point of we not being there yet will not even arise. Ethical issues are hinged on disclosures, consent and assumption of responsibility by the lawyer or the firm mainly. From stakeholders’ consultation on the subject-matter will flow into whether or not amendments will lie with the LI 2423 and Act 32.
It is better to reform and adopt modern legal trends of best practice per the evolution of technology in the legal space or stand to be left behind.
(PART 2 OF 2 SERIES)
By Christian Lebrecht Malm-Hesse Esq.
Senior Associate- Interest Area: Technology Law
