By Kevin O’Reilly
The Law Society of South Africa’s (LSSA) E-Law Committee (the Committee) met on 19 July 2024 to discuss several issues within its area of expertise. The following were among some of the issues discussed.
The Committee considered the comments submitted to the Information Regulator in March 2023 on the proposed draft Rules of procedure for the Enforcement Committee, issued under s 92(2) of the Protection of Personal Information Act 4 of 2013.
The Committee discussed an AI Ethics Guideline drafted by University of KwaZulu-Natal (UKZN) Professor and legal practitioner, Donrich Thaldar, Honorary Research Fellow at UKZN, Dr Marietjie Botes, and legal practitioner and Honorary Research Fellow at UKZN, Paul Esselaar. They believe this guideline would be useful for the South African legal practitioner when using AI in legal practice. The authors have proposed that the LSSA take ownership of the document under a Creative Commons Non-Commercial Attribution license, allowing it to be freely shared with the profession. This would also enable practitioners to customise the guidelines to suit their own practices.
The document, inter alia, deals with –
The Committee decided not to express an opinion on whether specific tools can or cannot be used, or whether they compromise confidentiality or privilege. This is due to the black box nature of some of these systems and the wording of their terms and conditions, which makes it difficult to provide a clear assessment. Instead, practitioners should be encouraged to make their own decisions, exercise due diligence, and carefully review the terms of use of these products to ensure that sharing information does not compromise client confidentiality. Practitioners have adapted to a world where sending communications containing privileged information via e-mail through third-party service providers, or storing client documents with a third-party service provider is commonplace. Practitioners are aware that this does not inherently imply an intention to share or waive privilege or confidentiality. In fact, these practices can sometimes enhance the protection of confidentiality. Therefore, the decision to use such services should be based on the specific circumstances. The Committee also noted that practitioners often handle complex, lengthy documents to provide advice, a task for which AI may not be suitable. This work instead relies on one’s background and years of experience.
The Committee noted the Young Lawyers Conference held on 29 June 2024, which was a joint conference by the LSSA and the Legal Practitioners’ Fidelity Fund (LPFF), where AI use in practice was discussed (see Kgomotso Ramotsho ‘Young legal practitioners not involved in the politics of the profession ’ 2024 (August) DR 4). The Committee also highlighted the rise in cyber breaches and emphasised the need to explore methods to better safeguard attorneys and smaller firms from such incidents.
The Committee agreed to review the document, calling for comments from the profession, finalise it, and recommend that the LSSA distribute it to the profession.
The Committee will also review the recent AI guidelines from the New York State Bar Association to understand the challenges they have encountered, as they may have more experience with AI than South Africa does. One should also be mindful that the most accurate results will come from jurisdictions where the training texts were sourced.
The Committee observed that recent legislation and regulations frequently address information management, security, and electronic practices. Contributing comments on these drafts can be time-consuming and detailed, particularly on short notice. The Committee proposed exploring a model to facilitate more in-depth research and drafting, including the possibility of external funding, particularly through programmes that support research on the use of AI. This will be pursued.
The Committee discussed the Electronic Deeds Registration Systems Amendment Bill B28-2022. The Bill seeks to transform the current property ownership recording system from a paper-based method to a fully electronic system, aiming to modernise the process and offer potential benefits to all stakeholders (see Nina Valetta ‘Modernisation of land records in South Africa – a look at the Deeds Registries Amendment Bill’ 2024 (June) DR 13). It was noted that some Committee members have been involved in an advisory role, offering relevant insights to ensure the end product functions effectively for practitioners.
The Committee formally noted their condolences to the LSSA on the passing of Executive Director Anthony Pillay and all the tremendous work he did for the LSSA over the years.
Kevin O’Reilly MA (NMU) is a sub-editor at De Rebus.
This article was first published in De Rebus in 2024 (Oct) DR 13.
