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Numerous questions have recently been raised regarding the ethical use of artificial intelligence (AI) in the legal profession (see S Dippenaar ‘Understanding business liability when using AI-generated content’ 2024 (January) DR 2; K Ramotsho ‘Law firms should develop policies on the use of AI’ 2023 (Sept) DR 10; M Van der Merwe ‘Do legal practitioners truly understand the danger of ChatGPT?’ 2023 (Sep) DR 14; Prof M van Eck ‘Pitfalls and traps for legal practitioners when using ChatGPT’ 2023 (Sept) DR 11). At the time of writing this article, even though calls have been made for formal guidance, it seems that there is little to nothing regarding the use of AI in the legal sector. Few cases in South Africa have addressed legal practitioners’ use of AI, and unfortunately the courts have yet to offer any guidance on its application. The position in Europe and the United States of America seems more evolved than in South Africa. In 2020, the Council of Bars and Law Societies of Europe called for the development of an ethical framework when it comes to the use of AI in the legal profession (T Wahl ‘CCBE Position Paper on AI’ (https://eucrim.eu, accessed 17-9-2024)). At the heart of every legal code are ethics, confidentiality, and acting in the client’s best interests. Legal jurists are tasked to pave the way for future generations and the road must start somewhere. This article proposes an AI policy for legal practitioners, which should be seen as part of a growing revolution – creating a better society for those that undertook the oath to uphold the Constitution of South Africa.

The proposed policy will find its grounding in the Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities to which legal practitioners are bound. The proposed policy will firstly investigate the principles to which legal practitioners are bound and then, vested with the principles, outline a structure in which AI is to be implemented in legal practices in order to adhere to the Code of Conduct.

Resolution

The Code of Conduct was published on the 29 March 2019 in terms of s 36(1) of the Legal Practice Act 28 of 2014. The Code of Conduct applies to all legal practitioners (attorneys and advocates) as well as all candidate legal practitioners and juristic entities as defined (Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities. Part I, Definitions. Sections 1.2, 1.3, 1.5, 1.6 and 1.18. Part II, Code of Conduct: General Provisions. Section 2. The provisions of Part II of the code shall apply to, and be observed by, all legal practitioners, candidate legal practitioners and juristic entities including, where the context requires, legal practitioners who are not in private practice, but are not exhaustive. If legal practitioners, candidate legal practitioners and juristic entities are at any time in doubt about the meaning or applicability of any part of this code they may apply for a ruling from the Council). The inclusion of a juristic entity which can loosely be described as the juristic auspices under which a legal practitioner as an attorney can practice and by way of vicarious liability, the policy will also be applicable to the staff of such a juristic entity. Considering the latter it will be prudent for a legal practitioner and staff of the juristic entity to follow a conceptual framework regarding the use of AI in the practice. The policy will be based only on the Code of Conduct in South Africa.

Principles on which the policy is based

• Confidentiality: ‘Legal practitioners, candidate legal practitioners and juristic entities shall maintain legal professional privilege and confidentiality regarding the affairs of present or former clients or employers, according to law’ (Code of Conduct, Part II, s 3.6).
• Honesty and integrity: ‘Legal practitioners, candidate legal practitioners and juristic entities shall maintain the highest standards of honesty and integrity’ (Code of Conduct, s 3.1).
• Competence: ‘Legal practitioners, candidate legal practitioners and juristic entities shall use their best efforts to carry out work in a competent and timely manner and not take on work which they do not reasonably believe they will be able to carry out in that manner’ (Code of Conduct, s 3.11).
• Uphold legislation: ‘Legal practitioners, candidate legal practitioners and juristic entities shall refrain from doing anything in a manner prohibited by law…’ (Code of Conduct, s 3.5).
• Supervision: ‘An attorney shall exercise proper control and supervision over his or her staff and offices’ (Code of Conduct, s 18.3).
• Transparency: ‘An attorney shall use the services of a third party … only where the attorney has established a bona fide attorney and client relationship with the client, such that the client is free to elect whether or not to use the services of the third party’ (Code of Conduct, s 18.11 and 18.11.1).
• Transparency on fees: ‘An attorney shall not overreach a client or overcharge the debtor of a client, or charge a fee which is unreasonably high, having regard to the circumstances of the matter’ (Code of Conduct, s 18.7).
• Accountability: ‘A legal practitioner and a firm shall take reasonable steps to avoid and prevent any reasonable suspicion arising that his, her, or its integrity is compromised in any respect,’ and ‘[a]n attorney shall perform professional work or work of a kind commonly performed by an attorney with such a degree of skill, care or attention, or of such a quality or standard, as may reasonably be expected of an attorney’ (Code of Conduct, s 9.1 and 18.14).
• Bias: ‘Legal practitioners, candidate legal practitioners and juristic entities shall uphold the Constitution of the Republic and the principles and values enshrined in the Constitution, and without limiting the generality of these principles and values, shall not, in the course of his or her or its practice or business activities, discriminate against any person on any grounds prohibited in the Constitution’ (Code of Conduct, s 3.2).

Guidelines

• Designation: The organisation under which name and style the legal practitioner practices should before embarking on the use of AI tools, appoint a qualified Chief Information Officer and Chief Technology Officer whose duty will be to ensure adherence to the Code of Conduct as well as relevant South African legislation applicable to the organisation.
• Duty of care: It is the duty of the legal practitioner to verify that the use of AI as well as the product provided when using AI tools are in accordance with the Code of Conduct, governing legislation of legal practitioners and further accords with all legislation.
• Due diligence: Before engaging the services and assistance of AI, legal practitioners must ensure due diligence in that the AI tools used are reliable, secure, and comply with the ethical standards. The legal practitioner should attempt to obtain the specific AI tools’ development process. This could educate the legal practitioner on resources on which the AI is trained. The legal practitioner could then identify certain potential biases and limitations of the specific AI tool(s) to be used and will ensure that the AI is a competent tool for the purpose of which the legal practitioner intends to use it for. The legal practitioner and staff should report to the Chief Information Officer and Chief Technology Officer all inaccuracies or ethical concerns for investigations to be conducted regarding compliance with the policy, Code of Conduct and legalisation applicable.
• Consent: Legal practitioners should obtain informed consent from their clients before engaging in the use of AI. Informed consent will be complete transparency by the legal practitioner and will ensure that the client understands all risks and benefits involved when engaging in the use of AI. It will be the duty of the legal practitioner to ensure that the client understands the use of AI and should as a basis accept that their client is not familiar with the benefits and/or risks relating to the use of AI. It is suggested that legal practitioners include the informed consent policy in their power of attorney and/or an additional document relating to informed consent.
• Supervision: When a legal practitioner engages with AI tools and it delivers a product, the product should be thoroughly reviewed by the legal practitioner. Furthermore, all information on which the AI tools based the product, should be crosschecked for validity and reliability at the source. The legal practitioner is accountable for the product that AI produces, and the legal practitioner should ensure that same aligns with the relevant legal position and ethical standards set in various codes of conduct as well as legislation.
• Confidentiality and data protection: Legal practitioners must firstly review the terms and conditions of the AI tool(s) they are desirous to engage, to ensure that same complies with the confidentiality and data protection principles as laid out by South African legislation. It is of paramount ethical importance that a legal practitioner does not disclose confidential information from clients and/or other parties concerned with the instruction received. Legal practitioners should ensure that the necessary security measures are in place in order to satisfy their duty in terms of the relevant legislative requirements. The legal practitioner should de-identify and/or anonymise all confidential and/or sensitive information before utilising AI tools for a product to be provided.
• Copyright and other legislation: It is the duty of the legal practitioner to verify that the product created by AI is not used in a manner that infringes on copyright and does not pose a risk of non-compliance with any legislation. In the event that a legal practitioner is aided by a product created by AI tools that is based, in whole or in part, on another creator’s work, it is the legal practitioner’s duty to give recognition to the original creator of the product and/or work on which the product is based.
• Education: Legal practitioners must continue to educate themselves on the developments with AI, focusing on its ethical and legal implications. AI is rapidly evolving, and a legal practitioner should stay abreast with the new developments. Legal practitioners should constantly adjust the utilisation of AI that has been implemented based on the developments, reviews received, and feedback received from their client base.
• Transparency with the court and/or tribunal: When relevant to the specific matter in which the legal practitioner employed AI tools in assisting them, the legal practitioner should disclose this information to the court and/or tribunal.
• Prevention of bias and discrimination: Legal practitioners should take note of and acknowledge the warnings issued regarding bias and discrimination when engaging in the use of AI tools. Legal practitioners should further actively take precautions to prevent or at least mitigate the impact of same. If a legal practitioner comes across AI tools which are blatantly designed on bias and discriminatory information during the due diligence process, the legal practitioner should avoid the use of such algorithm as the impact for the client and/or the court and/or tribunal will be perpetually unfair.
• Technical measures: The legal practitioner and the organisation under which name and style the legal practitioner practises should take the appropriate technical and organisational measures to circumvent a breach together with a robust policy regarding breaches that adhere to national and international standards.
• Limitation of liability: Legal practitioners should only engage in reputable AI tools even though the accuracy of same cannot be guaranteed. Legal practitioners should further warn and indemnify clients by ways of a notice to them regarding the accuracy and completeness of the AI tools used. The reason for the latter is that even though a legal practitioner is compelled to take reasonable care and steps to ensure the accuracy of the AI product, same cannot be guaranteed. This ties in with the importance of human oversight and clear communication towards clients about the risks and benefits of using AI tools.

Other factors to take into consideration

• Legal research: AI is already known to enhance effectiveness. However, it is the duty of the legal practitioner to ensure the accuracy of the product provided by AI. Legal practitioners should not solely rely on the ability of AI and firstly engage reputable legal resources in ensuring the accuracy of the results.
• Document review: AI will greatly improve the effectiveness of document review, however, it rests with the legal practitioner to ensure supervision regarding confidential information and that the duty vests with the legal practitioner to uphold privilege of information.
• Analytics: AI can be used to analyse outcomes of matters and possibly predict trends. However, legal practitioners cannot only use this information and should avoid advising clients of certain outcomes to avoid future professional negligence claims.
• Client communication: Chatbots can possibly be used to enhance client communication. However, same should not provide any legal advice and should not negate any professional ethical standards as bestowed on legal practitioners. It should only vest in the legal practitioners to provide legal advice to clients.

Enforcement

A breach of the policy could have disciplinary implications for the legal practitioner as set out in the Code of Conduct.

By meticulous adherence to the guidelines and policies, legal practitioners can harness the power of AI while upholding the ethical principles enshrined in the South African legal profession.

Review

This proposed policy is based on theoretical research and should be reviewed constantly, updating same to reflect changes in technology and ethical considerations.

Disclaimer

This proposed policy is intended as general guidance and should not be considered a substitute for legal advice. The proposed policy is currently for dissertation purposes and should be further developed to suit the specific field of practice of the legal practitioner. Legal practitioners should consult with their professional indemnity insurer and Legal Practice Council if they have specific queries about the use of AI in their practice.

Conrad van der Vyver LLB (UP) LLM (Cyberlaw) (UJ) is a legal practitioner at Van Niekerk Attorneys in Pretoria. 

This article was first published in De Rebus in 2025 (May) DR 26.