Canada: Generative AI: A Source For Legal Assistance?

The accessibility of the legal system and indeed, to justice itself is a long-standing issue. In a survey conducted by the Justice Department of Canada in January 2022, ¹ the number of people experiencing legal problems is increasing. However, access to professional legal advice is not an option for many, with cost being a big factor.

With the advent of generative AI, more people will almost certainly turn to online searches and rely on programs like ChatGPT for legal guidance and advice. However, relying on generative AI comes with significant risks that must be assessed, depending on how much reliance is placed on it.

The biggest drawback is that generative AI does not provide legal advice. It is not designed to do that, and in fact cannot. It might provide certain insight, information, and pointers, but not more than that.

For those without the means to access a lawyer, even that is better than nothing. Also, doing legal searches as a way to gather information and get a better understanding of things before seeking advice from legal professionals can be very helpful for all sides. Regardless of why such searches are done or their intended use, caveat emptor very much applies.

What can generative AI do?

The prime focus of generative AI is to a provide a simple response based just on a short query, without any view to potential consequences or alternatives. That is why generative AI is great at providing a definitive response to a definitive question, and why it is great for everything from cake recipes to directions on how to assemble a hydrogen bomb.

When the queries become more probing or open-ended, the certainty of the response decreases correspondingly. That is why generative AI is far less definitive and effective if concrete advice regarding things like a shareholder dispute, contractual breach, lease issues, tax matters, or a matrimonial dispute is needed. Advice of that nature would be far more questionable using generative AI, or any other online search.

Such enquiries and issues are very much fact based, requiring a lot of background information along with an understanding of future intentions. Those would not be things that generative AI could factor into a response. Additionally, a lot of follow-up information is required before any potential and meaningful way forward can be proposed. Generative AI would not be able to assist with that. It also would not build on a response as facts on the ground change or new information becomes available.

There is a growing array of information available from various generative AI programs, including those that have a legal focus on them. However, such programs are themselves usually aimed more as tools for legal professionals to use (with the associated fees), as opposed to programs aimed at assisting those who cannot afford a lawyer. Moreover, even with legally oriented programs, they do face many of the aforementioned constraints.

Reliability of Advice

Just as generative AI is not (at least not yet) programmed to provide comprehensive legal advice, it also has no minimum standards of competency to meet. There are no assurances as to the quality or reliability of a response to a query, nor from what source the response was generated. There is no certainty as to jurisdictional relevance or applicability.

Though searches on programs like ChatGPT can specify a jurisdiction, there is no assurance that will be respected or even observed. In other words, a user should have no reasonable (or any) expectation that advice generated is jurisdictional specific, or that it can be used for its intended purpose.

There have also been issues with generative AI in fact generating ("creating" you might say) case law that did not otherwise exist (fake cases). That has led to at least one law firm in New York being sanctioned. ² If a law firm can be taken in by fake case law, it is alarming to think of how easy it would be for a non-legally trained person to be similarly duped. A user would have no recourse against the program being relied on (or its owners or search engine providers) if the advice provided is negligent and / or wrong. That would not be the case if a lawyer is used.

To practice law in Canada, a lawyer must all be member in good standing of the provincial Law Society where they practice. That helps to ensure certain minimum standards of competency, professionalism, and client service are met. A client has recourse if they are not, including a quick, convenient way to make a complaint. That sort of assurance is in and of itself a huge benefit.

There is no Privilege or Privacy

Another huge benefit of seeking professional legal advice is lawyer – client privilege. That provides anyone seeking legal advice from a lawyer with a solid foundation to refuse to disclose communications with a lawyer and to protect the confidentiality of legal advice. Conjunctly, lawyers are also bound by strict rules to not disclose information or advice provided to a client or information received from a client. The only exceptions to that are if the communications between lawyer and client are of a criminal nature or if the communications themselves are a criminal act.

That sort of privilege would not exist with any sort of online search or query. There would also be nothing to stop a counterparty (or police or prosecution service) from compelling disclosure of such information, which could be used against the searching party / user. So, there is no privacy (or reasonable expectation of same) when trying to obtain legal assistance online. That would not be the case with lawyer – client privilege, whose sanctify under the law is protected.

Intellectual Property Issues

There is already a fair amount of litigation (especially in the US) regarding copyright issues involving generative AI. For purposes of this article, the relevance of that is using generative AI to generate documents like contracts (even for simple matters). There could very well be proprietary issues with such documents.

There are already a number of companies whose sole commercial purpose is to sell template legal documents online, including things like Wills, commercial contracts, real estate contracts, etc. Use of them without permission or payment can lead to claims by the copyright holder (quite apart from a myriad other issue, like whether or not such documents are suitable to use in the first place).

Generative AI Has a Role

Like any other tool, from Will kits that can be purchased online or at Staples, to smart contracts, and indeed, to generative AI, technology has a useful and valuable role to play when it comes to helping improve access to justice. That role will become more prominent as generative AI develops even further.

There are no doubt programs like ChatGPT can churn out some impressive documents and offer helpful pointers to all concerned. With even more powerful algorithms on the way that will significantly improve performance and reliability. Moreover, fierce competition in the AI space will lead to better responses to legal queries. As a result, generative AI may be able to help you figure out if you should hire a lawyer and, even more likely, lead to legal programs lawyers may pay for to make any lawyer you hire more efficient. However, as with any other technology, there will always be drawbacks, which must be understood before the technology is used. Such drawbacks make it inadvisable to believe that generative AI can replace the need to seek out professional legal advice. That is unlikely to change for some time yet, if ever.

To end, it is interesting to note what ChatGPT itself says about relying on it instead of a lawyer for legal advice or assistance. Sending the message "will ChatGPT replace lawyers in Canada" to ChatGPT generates the following response:

Footnoes

1. https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00001-eng.htm

2. https://abovethelaw.com/2023/05/chatgpt-bad-lawyering/issues

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.