Evolving Regulatory Framework for AI

On 28 August 2024, the Law Society organised a webinar on the Impact of AI on the Legal Profession, which attracted a record-breaking registration rate of over 2,200 members. This speaks volumes about the charisma of artificial intelligence ("AI"). Not everyone likes it but it has the irresistible power to draw people’s full attention to it.

The immense potential to be unleashed by the developing technology poses many unanswered questions about what kind of future it is shaping for mankind. Globally, rules, regulations and ethical guidance on the use of AI are being developed one after another in a race to be the global standard setter.

In March 2024, the European Parliament adopted the Artificial Intelligence Act ("AI Act") which is said to be the first comprehensive law regulating AI in the world. It will be applicable 24 months after entry into force, but some parts will be applicable sooner.

The AI Act establishes obligations for providers and users depending on the level of risk of the AI systems. If the AI systems are assessed to pose unacceptable risks, i.e. the AI systems are considered a threat to people, they will be banned. For AI systems that negatively affect safety or fundamental rights, they will be considered high risk. All high-risk AI systems will be assessed before being put on the market and also throughout their lifecycle. People will have the right to file complaints about AI systems to designated national authorities.

While the European Union launched the AI Act in March 2024, the Council of Europe has also been working on the Council of Europe Framework Convention on Artificial Intelligence and Human Rights ("Convention"). In early September 2024, a number of countries including the United States, the United Kingdom, Norway, Iceland, the European Union, Georgia, Israel, Andorra, Moldova and San Marion signed the Convention, which is said to be the first global convention on AI that focuses on the protection and promotion of human rights, democracy and rule of law and the first-ever international legally binding treaty in this field. It aims to ensure that activities within the lifecycle of artificial intelligence systems are fully consistent with human rights, democracy and the rule of law, while being conducive to technological progress and innovation.

The Convention sets out the fundamental principles that activities within the lifecycle of AI systems must comply with including, for example, human dignity and individual autonomy, equality and non-discrimination, respect for privacy and personal data protection, transparency and oversight, accountability and responsibility, reliability and safe innovation. The Convention covers the use of AI systems by public authorities and private actors. It allows signatories either to be directly obliged by the relevant Convention provisions or, as an alternative, take other measures to comply with the treaty’s provisions while fully respecting their international obligations regarding human rights, democracy and the rule of law.

For the legal sector specifically, the American Bar Association recently issued a formal opinion on Generative AI ("GAI") Tools on 29 July 2024. In conclusion, the opinion notes that "Lawyers using GAI tools have a duty of competence, including maintaining relevant technological competence, which requires an understanding of the evolving nature of GAI. In using GAI tools, lawyers also have other relevant ethical duties, such as those relating to confidentiality, communication with a client, meritorious claims and contentions, candor toward the tribunal, supervisory responsibilities regarding others in the law office using the technology and those outside the law office providing GAI services, and charging reasonable fees.".

This is in some aspects similar to the position of the Law Society as set out in our Position Paper on the Impact of AI on the Legal Profession issued in January 2024. The legal profession is defined by the core values which it holds dearly – independence, confidentiality, absence of conflict of interest. A lawyer’s duty is to serve the public ethically, diligently, and competently. Hence, no matter what tools a lawyer uses to assist him in his legal practice, his professional ethical duties and values should not change. A solicitor has a duty to act competently and competence involves more than an understanding of legal principles. It involves an adequate knowledge of the practice and procedures by which such principles can be effectively applied and the ability to put such knowledge to practical effect. If a solicitor wants to rely on AI and other technologies, which are becoming more advanced, more complex and more extensive, as part of the services to his client, he must make sure that he understands how the tools he uses work. He must know the capabilities and limitations of the tools and consider the risks and benefits of the products generated by those tools in the context of the specific case that he is working on. As a qualified legal practitioner, the solicitor shoulders the ultimate responsibility on the quality of the work.