IBA Annual Conference touches on important legal issues

November 1st, 2024
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More than 4 000 lawyers attended the IBA Conference in Mexico City. The opening was on Sunday, 15 September 2024, and the Law Society of South Africa’s (LSSA) President Joanne Anthony-Gooden (second from left) represented the LSSA. Legal Practice Council Chairperson, Janine Myburgh (third from left front) also attended the conference. With them in the photo is: Charlotte Stubbs of the Law Council of Australia (third from left rear), Colin Jupp and Jason Maynard (second and first from the right), partners from Peter D Maynard Counsel & Attorneys.

The International Bar Association’s (IBA) Annual Conference was held from 15 to 22 September 2024 in Mexico City. President of the Law Society of South Africa, Joanne Anthony-Gooden attended the conference and compiled the following report.

At the opening of the IBA conference on 15 September 2024 in Mexico City, the welcome address was given by the President of the IBA Almudena Arpón de Mendívil Aldama.

Achieving the impossible

On 16 September 2024, the morning keynote address was delivered by Leader of the Miracle on Los Andes, Nando Parrado. Mr Parrado’s session was titled: ‘Achieving the impossible – the epic and human story of Nando Parrado’. Mr Parrado, a passionate speaker, gave his unique experience of fighting for survival after the aeroplane of the Uruguayan Air Force transporting an amateur rugby team including himself to Santiago de Chile, crashed in the Andes Mountain Range in 1972. Mr Parrado lost his mother and his sister in the accident and survived for 72 days after the plane had crashed before being rescued. Out of the 45 passengers onboard, only 16 were rescued.

Mr Parrado shared his epic story of survival and courage through finding motivation; pushing resilience to the limit; facing unprecedented moral challenges; empathising with other survivors; trusting friendships; supporting group leaders; and emerging as a leader.

Mr Parrado said that survival is about facing death. He said that after their plane crashed, the group had elected a leader because they were a group which had the following in common, namely, religion, age and ethnicity.

Mr Parrado said that they survived because they were a fantastic group of people, and they had multiple leaders, who each led the survivors for a purpose. He explained that leadership is about –

  • innovation;
  • research and development;
  • strategy; and
  • luck.

Mr Parrado explained what he meant by ‘luck’. He said that there had been no boarding passes and that he chose to sit in row nine with his best friend, adding that when the aeroplane hit the mountain, the wings broke off and the aeroplane split in half. Everyone who was sitting from row ten onwards, died. He went on to say that only 29 passengers survived and 24 of the passengers did not have a scratch on them.

Mr Parrado said the only food on hand was two slabs of chocolate and a bag of chocolate peanuts. He said that lasted for three days among 29 people. He said that there was no food and no water, and the thirst was unbearable. He added that many had never experienced snow and that they did not have warm clothes. ‘What I learnt was that if I let panic take charge then I would die. Fear saved me. I turned myself into a survival machine. I could not cry,’ he said.

Mr Parrado added that they managed to find a small radio, which picked up one radio station and on the tenth day, they heard a report from a sports channel stating that the search for the Uruguayan rugby team had been abandoned. ‘We were all devastated as that had given us all hope. It was then that we realised that we were all dead men walking,’ he said.

During the 72 days following the crash, the survivors suffered from extreme hardships, including sub-zero temperatures, exposure, starvation, and an avalanche, which led to the deaths of 13 more passengers. Mr Parrado went on to say that hunger was a massive issue and that he had never know that kind of hunger. ‘Hunger is the worst primal fear. There is a deep anxiety … not knowing when you will eat again,’ he said. He added that the survivors came to the agreement that they would have no choice to survive, but to eat the flesh of their dead friends. ‘It is not nice, the things you have to do, which peels away at your civilization’, he said, adding that the survivors were very spiritual, and they prayed every night. Mr Parrado said that the survivors were all acutely aware that they were running out of food, and they were seriously concerned what they would do if that happened. After a period of two months, they only had hope. They had no equipment and no boots and no gloves.

Mr Parrado emerged a hero after he and his teammate Roberto Canessa walked for ten days to find rescuers. It remains one of the most astonishing survival stories of all time and was detailed in the bestselling book by Piers Paul Read Alive: The Story of the Andes Survivors (William Morrow Paperbacks, 2002).

Mr Parrado said that he had an emotional reunion with his father adding that when he returned home, he was greeted by his neighbour who was mowing the lawn. He said was then that he realised that for everyone else life went on as usual.

Mr Parrado said the one lesson he learnt was that he should have told more people that he loved them when he could. The most important lesson for him was the importance of family. During the years, Mr Parrado has kept in touch with all the survivors and recently met up with all of them and their descendants, 145 of them. He said it was all worth it. ‘You will not succeed at once. Success takes time. There is no such thing as instant success.’

The panel discussing the pervasive nature of bullying, sexual harassment and gender inequality in the legal profession. From left: African Regional Forum Liaison Officer, Women Lawyers’ Committee, Adeola Sunmola; Member of the IBA Diversity and Inclusion Council, Sara Carnegie; Officer, Bar Issues Commission, Christina Blacklaws; Member, Law Firm Management Committee Advisory Board, Jeffrey Davis; Abogadas MX, Antonia Rodriguez AC CMG; and President/Chairperson, Ukrainian Bar Association, Mykola Stetsenko.

The nature of bullying, sexual harassment and gender inequality in the legal profession

In another session, hosted by the Women Lawyers’ Committee; the IBA Diversity and Inclusion Council; the IBA Legal Policy and Research Unit; and the Law Firm Management Committee, the discussion focussed on law firm culture, and how failing to make issues, such as bullying and sexual harassment and gender parity, a top priority, hinders the career progression of women.

In the session, titled ‘The pervasive nature of bullying, sexual harassment and gender inequality in the legal profession – be part of the solution!’ Member of the Law Firm Management Committee Advisory Board, Jeffrey Davis, explained that he had worked alongside many talented, powerful and thoughtful women in his career. ‘They were all excellent mentors, and they have assisted me to be a good lawyer and a good leader,’ he said.

Mr Davis said that he accepted that there have been serious workplace issues, which still need to be addressed and issues such as bullying, sexual harassment and gender inequality have an impact on workplace performance and this in turn will cause long term harm if the toxic workplace environment is not remedied. ‘It is our duty not to tolerate such behaviour,’ he said.

The Law Society of South Africa’s (LSSA) President Joanne Anthony-Gooden with South African legal practitioner and IBA member, Tshepo Shabangu at the IBA’s Women Lawyers’ Committee Lunch at the IBA conference.

African Regional Forum Liaison Officer of the Women Lawyers’ Committee, Adeola Sunmola, said that although there is no such challenge of gender parity in her firm, she is aware of these issues in law firms in Nigeria. ‘We must have this serious conversation. The gap exists. We need to study and gather data and accept that the general trend is that despite the campaigns launched against these practices the situation is not improving,’ she said. It was stated that from 135 countries, one in three women have experienced sexual harassment in the workplace and one in 14 men.

Crimes against women, a social crisis

In the session ‘Femicide, murder and other crimes against women – a social crisis’ the panel looked at gender-related killings (femicide) noting it was the most brutal and extreme manifestation of violence against women and girls. The form of gender-based violence, highlights deep-rooted issues of gender inequality and discrimination. As the murder and mutilation of women is not defined as a political crime, women continue to be fearful.

The session was chaired by the Director of the IBA Human Rights Institute, Lady Helena Kennedy LT KC, and the delegates were informed that in 2022, the United Nations registered 89 000 cases of intentional killings of women and girls worldwide. The highest number in two decades.

According to Lady Kennedy, femicide has become a social crisis, with gender-based killings prevalent in every country, yet she noted it was equally evident in emphasising the difficulty in accurately recording gender-specific violence, as many killings are not recorded as violence against women. The discussion further highlighted the global issue of femicide, emphasising its historical roots in patriarchy.

Founder and President of the Bianca Jagger Human Rights Foundation, Bianca Jagger and prominent Pakistani civil society activist, former chair of the Human Rights Commission of Pakistan and co-founder of Pakistan’s first all-women law firm, Pakistan’s first legal aid centre, and the Women’s Action Forum (WAF) and attorney at the Supreme Court of Pakistan, Hina Jilani, shared their experiences combating gender-based violence, advocating for legal reforms and community engagement.

Ms Jagger recognised the urgency and concern surrounding femicide and other crimes against women. Ms Jagger went on to highlight the political and systemic aspects of femicide, ‘even today, in the 21st century, I can only feel indignation when I see how governments have failed women throughout the world,’ she said.

Ms Jagger founded her organisation to advocate for women’s rights. From the Foundation and her activism, Ms Jagger’s global campaign against femicide and the culture of impunity around it was outlined.

Ms Jagger emphasised the importance of intergovernmental organisations, NGOs, and human rights defenders in addressing femicide and supporting women’s rights organisations. She included statistics on femicide from various countries, such as Mexico, the United States, and the United Kingdom. She highlighted the urgent need for comprehensive measures to address the issues and reminded delegates that the actual figures might never be known but noted that an average of more than 133 women were being killed every day, ‘each one a daughter, a sister, a mother, a friend,’ she said.

Ms Jagger called for lawyers to act as ‘agents of change, as advocates and guardians of justice, lawyers, judges, and members of the legal community’, saying: ‘They should … fight for a future for justice to prevail for all women around the world.’

Ms Gilani discussed the struggle against discriminatory laws in Pakistan during the 1980s. She highlighted the role of the WAF in fighting against these discriminatory laws and the importance of linking women’s rights with broader democratic and rule of law issues.

Ms Jilani highlighted the difficulties in altering deeply ingrained cultural norms that perpetuate violence against women but remained optimistic about the potential for change through sustained advocacy and legal challenges.

Recognising that legal action in the political climate in Pakistan at that time was unlikely to succeed, Ms Jilani said ‘we took our struggle to the street’. Women in the public eye, particularly women human rights defenders, are often targets of intentional violence on and offline, which was her own experience. ‘Women were taken to prison. They were beaten up on the streets, as I was. I suffered several arrests and, twice, imprisoned. Because of my activism, there were at least two assassination attempts against me,’ Ms Jilani said.

In a rhetorical question, Ms Jilani asked how she and the others survived it all. ‘Because, firstly, we thought there was no other option. It was not that I, or anyone working with me, was particularly courageous. What option did we have? Inaction meant no change’.

Former UN Special Rapporteur in New York, Dubravka Šimonović, discussed the importance of collecting and analysing data on femicide to inform policy and legal frameworks, which is crucial for addressing the issue effectively. Ms Šimonović’s work focusses on ensuring that femicides are recognised – not merely as homicides – but as crimes that are rooted in gender-based discrimination and require targeted responses.

On 17 September 2024, the morning keynote address at the International Bar Association’s Annual Conference was titled: ‘A world without lawyers? The IBA report on the social and economic impact of the legal profession’. The Law Society of South Africa’s (LSSA) President Joanne Anthony-Gooden with South African legal practitioner and IBA member, Tshepo Shabangu (third from left) were in attendance and Ms Shabangu was a speaker at the session.

A world without lawyers?

On 17 September 2024, the keynote address focussed on ‘A world without lawyers? The IBA report on the social and economic impact of the legal profession’. The executive summary can be found on the De Rebus website at www.derebus.org.za.

According to the IBA, the purpose of the report is to assess the impact of the legal profession on society, explore the relationship between this role and the general public’s perception of it, and identify the levers to improve its positive impact. According to the report, a lawyer’s contribution to society is often not well-known or recognised and the lack of awareness of and appreciation for what lawyers contribute to society is even greater among the public, civil society, institutions and states.

The IBA wishes to raise awareness among the public of the vitally important role the legal profession plays. According to the report, lawyers have a special status in society. Lawyers and bar associations are regulated by law. In turn, the law recognises that for lawyers to undertake this role, and to protect the best interests of their clients, communications must be protected by attorney-client privilege and professional confidentiality. Moreover, lawyers must be free from ethical conflict, and the profession must be free from state control. Also, lawyers have a duty to follow ethical rules and if they violate these rules they may be disbarred.

The report goes on to state that ‘one of the main – but often unnoticed – contributions lawyers make to society involves the access to a good operating and independent system of justice, which forms the foundations of a strong rule of law.’

As described in the report, it is well documented that respect by all players for the rule of law contributes to economic growth and social welfare. It is therefore a major responsibility for lawyers as well as for bar associations, law societies and associations such as the IBA, to assume the function of a watchdog on behalf of citizens in the defence and promotion of the rule of law.

  • Rule of law

Lawyers have a duty to draw the public’s attention to threats to the rule of law, whenever such threats emerge, especially nowadays when the rule of law is declining in almost 60% of countries. Lawyers should also ensure that human rights and the rule of law are always given their proper place in the mindset of the legislator. To perform this duty, lawyers must be guaranteed independence.

The legal profession can take a more active role being spokespersons for the rule of law’s values, educating the public about them, increasing awareness of their importance, and finally, denouncing the failures of its operation.

  • Findings of the report

The results of the assessment are structured into three mutually reinforcing categories of the legal profession’s impact.

  • Social impact:
    • Peace, justice and institutional strength: Institutional strength is essential in today’s world, both at global and local levels to ensure that peace and justice are maintained and upheld. This requires effective, accountable, and inclusive institutions, both governmental and non-governmental, that collaborate with each other, and which generate citizens’ trust. Lawyers contribute to this goal through efforts to improve anti-corruption laws, regulations, enforcement, and compliance, by for example, denouncing governments’ wrongful conduct and promoting collaboration among them to ensure a consistent application of different regulations and developing common standards or positions.
    • Equality and inclusion: Legal professionals also act as champions of increased equality and inclusion. Empathy, placing themselves in the shoes of their clients and listening are qualities sine qua non for any successful legal professional. A law firm of diverse lawyers, providing an inclusive environment, conducting reports on how to promote these essential values, acting pro bono to counsel, and representing the underrepresented in our society, strongly furthers equality and inclusion. Many legal professionals go a step further by independently and actively addressing inequality, especially defending human rights. On the very relevant area of gender equality, women around the world are still facing serious inequities and legal reform must remain high on the legal agenda. Lawyers play a vital role in arguing the case for women’s rights and the creation of justice systems which will achieve that end.
    • Education: Education is the departure point to ensure that equal opportunities are granted to citizens so that legal and economic justice exists for all. Legal professionals contribute to this impact area by drafting policies, advocating, and fighting for the universal right to education, and teaching citizens about their rights and the legal system. This connects again with the important role of lawyers in supporting the rule of law by informing the public about their rights and duties under the law and in protecting their fundamental freedoms.
    • Environmental sustainability: The work of legal professionals also promotes environmental sustainability. This is achieved through policymaking, advising on the drafting and implementation of international climate agreements, representation in environmental cases, advocacy efforts, creating awareness for their clients about the impact of their activities, encouraging proactive behaviours to minimise such impact, and providing the legal advice required in the aftermath of disasters.
    • Health and well-being: Lawyers also advance the health and well-being of society by drafting healthcare policies, representing people from underserved communities in important court cases, and advocating for more effective healthcare systems.
  • Indirect economic impact through the contribution to the rule of law: A relevant indirect economic impact of legal professionals relates to upholding the rule of law – a required element to create the foundations for economic growth. The statistics developed for this report show a strong correlation between a strong rule of law protected by a fair, effective, independent, and accessible justice system and GDP’s dedication to research and development, allowing for greater innovation for the benefit of society. A strong rule of law encourages higher levers of inward investment and mergers and acquisitions, which can support broader economic growth and prosperity.
  • Direct economic impact: Employed lawyers produce revenues and generate tax contributions. This direct impact leads to an ecosystem that includes business and employment for legal personnel, suppliers, and the broader economy. Legal services employ approximately 20 million professionals and create an additional 14 million jobs related to legal work. Legal professionals also make an outsized contribution to the GDP.
  • Looking ahead

The report is the first step toward assessing the contributions of the legal profession to society and continuing to enhance its positive social and economic impact. The IBA is already driving multiple initiatives, namely –

  • to enhance access to legal representation;
  • engagements in advocacy and the support of policymaking efforts;
  • enhance education and communication; and
  • professional ethics stewardship.

A group of members from the Commonwealth Lawyers Association attended the International Bar Association’s Annual Conference in Mexico City. Law Society of South Africa President, Joanne Anthony-Gooden met with various stakeholders on Monday, 16 September 2024. From right: Ian McDougall, Jaideep Gupta, Joanne Anthony-Gooden, Peter D Maynard KC, David Greene, Justin Amenuvor, and Jason Maynard. Some members were meeting each other in person for the first time.

Cross-border legal practice

In the session titled ‘Cross-border legal practice: What is the state of play and where are we heading next?’, committees took stock of the developments made in cross-boarder legal practice and reviewed the jurisdictions who opened their legal services market to the practice of foreign lawyers and law firms.

This session was chaired by Section on Public and Professional Interest Council (SPPI) Vice Chair, Dr Babatunde Ajibade SAN of Nigeria and Co-Chair of the Arab Regional Forum, Sara Koleilat-Aranjo.

Ms Koleilat-Aranjo gave a perspective from the Middle East, where the rules of various bar councils are very strict and ‘you cannot practice if you are not a citizen of that region,’ she said, adding that in the United Arab Emirates (UAE) you must be a national to have the right of audience (right of appearance).

Ms Koleilat-Aranjo said that there have been many developments in the Middle East as there are several regional players in the regions. There is a significant rise of international firms in the Dubai (UAE) and in the Riyadh (Saudi Arabia) economic hubs. Recent changes include the opening of area despite religious and cultural perspectives. She added that there has been an impact on legislative frameworks in both areas and ‘we have seen a series of legislative amendments for law offices to be allowed to practice in these regions. The market is being driven by the growing requirement to cater for the legal needs in these two economic hubs,’ she said.

Ms Koleilat-Aranjo said that because of geopolitical issues, Dubai has been established as a regional hub for global services. She gave an example, that in the Ukraine has caused a closure of many international firms in Russia and many Russian firms have opted to move their firms to Dubai, and there has been an influx of Russian lawyers to Dubai. She added that many international firms have also elected to move from London and Geneva to Dubai.

Ms Koleilat-Aranjo added that if the Saudi Arabia authorities proceed with fully opening their region up, it will be beneficial to Saudi Arabia as they have strict requirements. One example is the 30/70 principle, which states that for every foreign lawyer that is employed by a foreign firm in Saudi Arabia, two Saudi Arabian lawyers must be employed as well. The long-term view is to transition their cross-border practices, to upskill local lawyers.

Representative from Madrona Fialho Advogados, Lucas Spadano, gave perspectives on Latin America and Brazil. He said that in Latin America, fly in and fly out services are allowed by foreign law firms who can only advise on issues of foreign law – they may not advise on domestic legal issues. Brazil has specific legislations, including restrictions on fee sharing.

Mr Spadano said that in the establishment of law firms, 20 to 30 foreign firms can only provide foreign legal advice, which includes, multi-jurisdictional matters, such as anti-bribery and corruption matter. He added that international arbitration is also a very popular area of law. Mr Spadano added that the Latin American countries are engaging with India on specific joint ventures, as well as pharmaceutical matters, and with China on pharmaceutical matters.

On a Nigerian perspective, Dr Ajibade said that the Nigerian Government has agreed to have announced that they are opening the doors for foreign lawyers. This decision was made without consultation of the Nigerian Bar. He added there is a perception of a threat to the African legal space. The Nigerian Bar has confirmed that they cannot insist on a closed legal market. They accept that they need to work on a protocol to regulate foreign lawyers.

Dr Ajibade said there are benefits of opening. The challenge is that the government is not using local Nigerian lawyers and there must be restrictions on what type of law they can practice.

IBA Council Member, Law Council of Australia, Charlotte Stubbs, gave perspectives from the Asian Pacific region and from Australia. In Asia, there are also two hubs, namely Singapore and Hong Kong.

She said in Singapore, foreign legal practices are allowed, but they are highly regulated. It is not completely open to foreign legal practice. It is far easier to practice with a Singaporean partner. However, Hong Kong is far more liberalised. Japan has taken a decision to make foreign law firm registration easier and China is open to foreign law firms, but it is structured in a lawful manner. Chinese

lawyers may not be in partnership with foreign lawyers, otherwise they lose their right to practice in China.

In India, there were regulations published in 2023. These regulations are not enough to assist foreign firms in India and more needs to be done. Many Japanese firms are trying to enter India, and the Indian regulations need to be improved. There is a lot of legal work related to India, which is not being done in India. A lot of significant legal work relating to India is being done in Dubai, Singapore or London.

Regarding Australia, more than 13 years ago, multiple international firms merged with Australian big firms. They wanted to service their clients internationally. Not much has happened other than the mergers. Certain level of work that international lawyers can do – and these are in expert specialist fields. In Australia you can secure conditional admissions for specialised fields within a safety net.

The most documented war in history

The Law Society of South Africa’s (LSSA) President Joanne Anthony-Gooden with actor and activist Liev Schreiber.

Ukraine’s Prosecutor General, Andriy Kostin and actor and activist Liev Schreiber, told a packed main hall how meticulous evidence-collecting meant Russia’s invasion of Ukraine would be, in Mr Kostin’s words, ‘the most documented war in history’. This was in the session titled: ‘A conversation with… Prosecutor General of Ukraine, Andriy Kostin and Liev Schreiber’, IBA Executive Director, Mark Ellis – with Mr Kostin appearing via live video link from Ukraine – also discussed Ukraine’s need for weapons from its allies and the impact of domestic corruption accusations.

Mr Kostin said that the Ukraine is committed to bringing war criminals to justice locally and in international courts of justice amid the ‘evils’ of Russia’s war against it.

‘It is not easy, but we are using the best technologies and techniques to collect evidence of crimes. With the help of our partners, we have also created a system of training members in our judiciary, our prosecutors and our defence attorneys to ensure that trials are fair. Our commitment is to bring justice to every Ukrainian and for the aggressor to know that the rules apply to them,’ he said.

Mr Schreiber has visited the Ukraine several times during the war in his capacity as a co-founder of BlueCheck Ukraine, a humanitarian start-up that provides financial support to organisations and aid groups on the ground in Ukraine. Mr Schreiber said that he has seen the ‘tremendous amount of legwork’ involved in evidence collection.

According to Mr Kostin, to date, 131 Russians have been convicted by Ukrainian courts, most in absentia, which is why meticulous digitised data and evidence collection is so important. Two years after Russia’s full-scale invasion of Ukraine, states continue to discuss setting up an international tribunal dedicated to prosecuting Russian aggression against Ukraine. ‘Everyone knows there is a lot of evidence to prosecute [Russian President Vladimir] Putin and once a decision is made, we will be ready. I am optimistic that at the end of the day we will find a solution to punish those not only who started this war but to show dictators of other regimes that they will be held to account if they start wars,’ he said.

Mr Ellis asked about the perspective on receiving long-range weapons from the United States, as the Ukraine has asked to use Western long-range weapons to strike deeper into Russia for months. Mr Schreiber said ‘one of the things that I find particularly concerning is the politicisation of policy, like using the issue of the weapons the Ukrainians need as a political tool. Both of the US political parties need to get back to our values; stop looking at elections and politics as shifts of power but as the way that we as Americans exercise our values.’

Accusations of systemic corruption in Ukraine has been a theme detracting from its war effort. ‘Corruption is an internal enemy in Ukraine and our daily work of fighting it,’ Mr Kostin said. Mr Schreiber pointed that an increase in the number of prosecutions did not mean corruption was increasing but that efforts to comb it were being stepped up.

When asked by an audience member about the stress of his position, Mr Kostin said: ‘It is critical for Ukraine to feel your support because working together with us shoulder to shoulder is what helps our morale. Our challenge is not only to win the war but to prepare for peace for all of us.’

Can generative AI have the power of persuasion?

In the session ‘Confronting “old style” advocacy to artificial intelligence solutions: Efficiency, persuasion and ethics’, the question was asked whether generative artificial intelligence (AI) has the power of persuasion. It was stated that the human advocate is still required as AI can generate output, but not human touch and there is a significant importance in the regulation of AI. AI will not change how people ‘persuade’ people.

Humans will need to teach AI their style and language, but only you can identify the weaknesses and contradictions in the briefs presented. AI can prepare cross-examination questions and can advise on cross-examination questions versus leading questions, and the system can translate, but you need to use a reliable legal AI technology.

It was stated that all content needed to be checked and verified and be aware of the pitfalls of AI, which include privacy and security settings; and it is important to note that some AI disappears after being considered progressive.

It is said that the developers have not yet found an AI tool to act as fast as a human in an actual court room hearing environment and accordingly lawyers must always rely on human oversight. A question being asked is, is generative AI now the biggest threat to remote hearings? The IBA Arbitration committee are making recommendations on the use of generative AI in arbitrations.

It was stated that AI is extremely efficient and is extremely transformative, and it is constantly evolving, not to mention the fast-moving technological developments.

During the session it was stated that it would be beneficial to all lawyers to create a taskforce on the use of AI. Lawyers must approach AI on a human level and focus on risks and focus on conduct that we want to encourage and discourage relating to the use of AI.

It would be extremely beneficial to all lawyers to create a taskforce on the use of AI as user friendly guidelines are necessary and vital, as over reliance on AI can be a threat to lawyers and the legal profession. The main issue is whether AI stores/keeps your data. It should be deleted and not retained by the AI model. It was said that it is important for all lawyers to read the terms and conditions of the AI product they elect to use in their firm.

At the International Bar Association’s (IBA) Annual Conference in Mexico City, a moment of silence was held in recognition of Executive Director of the Law Society of South Africa, Anthony Pillay and former President of the IBA, Sternford Moyo, who both passed away earlier this year.

IBA initiatives sets out to shape AI legal standard globally

On 19 September 2024, at the morning keynote address ‘The Future is Now: Artificial Intelligence and the Legal Profession with keynote speaker, Marc Rotenberg’, it was said that the IBA is due to receive the report of a groundbreaking task force dedicated to addressing AI within the legal sector. The report was launched at the IBA 2023 Annual Conference in Paris, the initiative signals a proactive approach to the integration of AI and law.

Project Director at the Centre for AI and Digital Policy in the US, Marc Rotenberg, was joined by speakers from all parts of the IBA. Mr Rotenberg provided an overview of how AI is transforming the legal profession, the emerging norms for the governance of AI, and the next steps for the IBA to take.

The initiative supports the IBA’s strategic goal of safeguarding core professional values while enhancing member services and knowledge of pertinent legal developments.

The task force concentrated on three primary areas with three working groups who focussed on –

  • regulating AI – this group was tasked with crafting high-level principles for AI regulation. They engaged with various IBA committees and regional forums to gather broad perspectives on necessary legal frameworks;
  • evaluating its impact on the legal profession – the team initially focused on AI’s effects on private legal practice and conducted focus group interviews with major law firms; and
  • advocating for best practices among bar associations – the group assessed current professional conduct rules to identify if adjustments are needed and provide resources for bar associations to adopt best practices.

The comprehensive report was presented at the IBA Mexico Conference and can be downloaded on the De Rebus website at www.derebus.org.za.

According to the IBA President, Almudena Arpón de Mendívil Aldama, the transformative impact of AI can no longer be ignored. If the Internet changed the way we live and work, AI may have an even greater impact on our profession and our society. Not all the consequences of AI have been identified yet, but it is clear the future is upon us, Ms Aldama said.

Ms Aldama stated that the IBA, as the global voice of the legal profession, cannot turn a blind eye to such a challenge. We have the duty to meet this moment, dedicating our expertise and insights to provide

guidance on the legal aspects of AI to our members, to the legal profession and to society.

‘The Future is Now: Artificial Intelligence and the Legal Profession’ is the first comprehensive IBA report on AI.

Key findings of the report

From the perspective of the impact of AI on the legal profession, with a focus on law firms (including sole practitioners) as users of this technology, the IBA found:

  • There is widespread AI adoption with regional and size disparities. The larger the law firm, the greater, better, and more sophisticated the integration of AI.
  • AI is primarily used internally for back-office administration, business development, marketing and organisational management. Again, in larger law firms, there is a higher percentage of AI usage in client facing applications such as legal research, document assembly, contract drafting and due diligence, driven by large language models (LLMs) and AI services.
  • Data governance, security, intellectual property (IP) and privacy remain significant challenges in AI governance, regardless of the law firm’s size. Smaller law firms and solo practitioners are facing more challenges in terms of AI governance and often lack policies and resources.
  • There is an expectation that AI will have a significant impact on law firm structure, hiring and business models. This could include shifts towards fixed or value-added fees, changes in hiring policies to prioritise AI-competent attorneys and a broader cultural shift towards innovation and change.
  • Training is a key priority in the context of AI. Law firms need extensive training, primarily to overcome trust issues, mitigate risk and unlock AI’s full potential. Law firms also need to continue training younger associates on legal work that may be carried out by AI, which allows them to have well-rooted expertise when they reach senior roles.

From the perspective of AI’s regulatory landscape, the IBA found that:

  • Stakeholder consultation is crucial for AI regulation. Organisations such as the IBA have a crucial role in the development and implementation of AI governance frameworks. Stakeholders are not limited to licensed lawyers and law firms; non-lawyer service entities engaged by the legal profession should also be considered.
  • Approximately 48% of the IBA favour comprehensive AI regulation that also enables innovation and technology adoption.
  • Consistency and coherence are the most prominent priorities in AI regulation from the perspective of the legal profession. Alignment – ensuring that outcomes produced by AI systems are aligned with human intentions – has also emerged as a key concern.
  • Major challenges in AI regulation include the potential chilling effect on innovation due to rapid enforcement of regulations, the constantly evolving nature of AI technology, and the difficulty in evaluating tools and understanding compliance requirements.

From the perspective of ethical guidance for law societies and bar associations, the survey of IBA members found:

  • Lawyers must keep abreast of changes in technology relevant to their practice. This includes understanding AI and its implications, ensuring lawyers can competently use AI tools while being aware of the ethical challenges and risks involved.
  • Lawyers must be diligent in ensuring professional conduct rules and guidance standards are upheld when using AI technologies. Existing rules emphasise the importance of maintaining confidentiality and professional secrecy, especially in electronic communications and data stored on computers.
  • Lawyers are responsible for supervising AI tools and ensuring their proper use. They must ensure that AI-generated work adheres to professional standards and that any legal work produced with AI meets the required ethical guidelines.
  • Lawyers should inform their clients when they have made use of AI, disclosing the scope of such use and the type of AI used.
Key recommendations for the IBA and its members

Aiming to provide the IBA and its members with useful guidance on AI-related issues from both a legal and practical perspective, position the IBA as an AI legal policy leader and comply with the IBA Strategic Plan to safeguard the core values of the profession, the IBA will consider undertaking relevant actions in the below fields:

  • Promote widespread AI adoption with special support for smaller firms. Develop programmes and resources specifically targeted at smaller law firms to assist them in integrating AI technologies. This can include providing access to AI tools, training sessions and financial incentives to lower the barriers to AI adoption and narrow the technological gap between large and small firms.
  • Enhance AI governance and policy development. Establish comprehensive guidelines and best practices for AI governance, emphasising data governance, security, IP and privacy. Encourage law firms to develop and implement AI policies that align with these guidelines to ensure responsible AI use across law firms of all sizes.
  • Support structural and cultural changes in law firms. Provide guidance on the organisational changes required to integrate AI effectively. This includes providing fora for discussions on transitioning to fixed or value-added fee structures, adapting hiring policies to ensure human resources are adequately equipped to accomplish different tasks, prioritising to the required extent AI-competent attorneys and fostering a culture of innovation and change within law firms.
  • Facilitate AI training. Develop or identify training programmes focused on the legal profession and AI literacy. These programmes should aim to build trust in AI technologies, educate lawyers on the ethical implications of AI use and provide practical guidance on using AI tools.
  • Encourage comprehensive stakeholder consultation for AI regulation. Advocate for the inclusion of diverse stakeholders – technology experts, industry representatives, academia and others, perhaps including civil society end-users and consumers, in the AI regulatory process. This will ensure that regulations are well-informed, balanced and reflective of various perspectives. Promote legal sector and professional associations such as the IBA as key stakeholders in the AI regulation process.
  • Promote consistency and coherence in AI regulation. Work with regulatory bodies to develop consistent and coherent AI regulations that avoid fragmentation and disorganisation. Special consideration should be given to cross-border issues and where possible, harmonisation. Emphasise the importance of stable yet flexible regulatory frameworks that can adapt to the evolving nature of AI technology while protecting legal and ethical standards.
  • Update ethical guidelines to reflect AI use. Revise and update ethical guidelines to include specific provisions for AI use. This should encompass the proper supervision and use of AI tools, the setting of standards for AI-generated work to meet professional ethical guidelines and include disclosure obligations regarding the use of AI. This initiative should also be undertaken with national bar associations and regulators.
  • Foster global collaboration and knowledge-sharing. Promote international collaboration and knowledge sharing among national bar associations, law societies and legal professionals. This can help establish global standards for AI use in the legal profession and provide a platform for sharing best practices, addressing common challenges and staying informed about the latest developments in AI regulation and ethical guidance.
Looking to the future

The report reveals several key challenges with AI –

  • the development of AI policies and governance standards to promote trust and confidence, and mitigate risk;
  • adequate testing and assessment of AI tools prior to deployment and subsequent evaluation throughout the AI lifecycle;
  • training of lawyers and administrators;
  • discussions with clients regarding the use of client data for training purposes; and
  • compliance responsibilities for both legal rules and ethical obligations.

AI was such a huge topic of discussion, at the conference it was discussed across 30 sessions and the sessions addressed ethical, practical, and legal considerations, as well as future directions for legal practitioner worldwide.

Joanne Anthony-Gooden BJuris LLB (NMU) is the President of the Law Society of South Africa.

 

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