AI: Draft LSB guidance does not adequately consider risks
The Legal Services Board (LSB) has “no role” in promoting the use of technology and there are “dangers in using regulatory levers to attempt to do so”, the Bar Council has warned.
Renewing its attack on the LSB for “regulatory overreach”, the Bar Council said there was “no need” for the oversight regulator to issue guidance which went beyond its permitted role under the Legal Services Act.
The Bar Council said the “proliferation of new pieces of guidance and statements of policy in recent years” on issues such as ongoing competence and consumer empowerment created a “regulatory burden” for lawyers and frontline regulators, diverting limited resources from core regulatory activities.
“This all pushes up the cost of regulation for both the regulator and the regulated community and can lead to higher prices for legal services, inimical to efforts to increase access to justice.”
The LSB issued draft statutory guidance on promoting technology and innovation in the legal sector in July this year, arguing that regulators needed to bring down barriers to the adoption of technology and innovation in the interests of reducing unmet legal need.
In its newly published response, the Bar Council said barristers had been using technology, such as “sophisticated internet research tools”, as an integral part of their practices for some time, along with tools to manage large amounts of data or present complicated cases in court.
The Bar was also aware of the risks to users of legal services from the “inappropriate use of, or reliance on” technology.
“The Post Office scandal demonstrates the risks posed both by power imbalances between tech companies and members of the public and the danger of the widespread bias that technology is more accurate than human judgment.
“A similar and equally problematic bias is ‘tech-solutionism’ – the assertion that technology can solve a given problem without any analysis of whether any appropriate technology exists and whether it can in fact solve the identified problem.”
The Bar Council said the advent of artificial intelligence (AI) created “potential risks to the public of a new magnitude”.
The draft guidance failed to appreciate that “the role of a legal services regulator is to create an appropriate regulatory regime to ensure that the public are protected from potentially risky technologies (while ensuring that appropriate technologies are able to exist).”
The Bar Council went on: “It is not the role of regulation to promote their use. There is a real danger that such regulatory guidance might create rather than reduce risks to consumers.”
Much of what the LSB referred to as the ‘evidence base’ for its conclusions was made up of “evidence of legal needs or aspirations as to what members of the public or legal professionals hope technology might be able to do” with “little analysis of any actual technologies and the risks or rewards that they might bring.”
The Bar Council said there was “no adequate consideration” of the “key risks” of AI, such as biases on the basis of race or gender.
The draft guidance also risked “exacerbating access issues for vulnerable consumers less able to use technology and more prone to harm from unregulated providers”, with regulators unable to protect them due to their limited remits.
“A convincing case for LSB regulatory action in this area has not been demonstrated. The LSB’s proposed guidance towards regulatory promotion of uptake of technology and innovation are both unnecessary and inappropriate and risk unintended consequences which the LSB and the approved regulators would then have no power adequately to address.”
In August, the Bar Council said the LSB has no role in “attempting to control or regulate lawyers involved in assisting clients in the lawful use” of non-disclosure agreements.
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