The Chancellor of the High Court, Sir Colin Birss, has given a speech addressing legal professional privilege in the age of AI.

Among other things, Sir Colin considered whether privilege might be extended beyond legal professionals to include advice provided by AI chatbots, as well as the extent to which privilege might be lost where legal practitioners use AI tools.

On the former point, Sir Colin pointed to the increasing use of AI by litigants in person, noting that “the material can be very long and not right, [but] it is not the case that all of it is wrong or of poor quality…quite often the litigant’s case is presented more clearly and coherently than I would have expected in similar circumstances in the past”.

While Sir Colin did not express a view either way, he noted that it could be argued that the exchanges between the litigant in person and the AI tool should be protected by privilege, as they would be if they took place between the litigant and a legal professional. However, he recognised that previous attempts to expand the scope of the common law doctrine of privilege to other types of advisers (such as patent agents or tax accountants) have failed.

On the latter point, Sir Colin highlighted a recent case before the Upper Tribunal in which legal professionals had cited fictional authorities as a result of using AI. As we discussed here, the judge in that case commented on how the use of AI tools might affect legal privilege, stating that:

“Uploading confidential documents into an open-source AI tool, such as ChatGPT, is to place this information on the internet in the public domain, and thus to breach client confidentiality and waive legal privilege”.

Sir Colin agreed with the underlying sentiment, saying that “confidentiality has always been a pre-requisite for the attraction of the privilege, so even if one did extend the concept of the privilege to include advice from AI, on the current approach, it would not seem to attach to the interactions with these public AI systems because they do not appear to be confidential”. However, he suggested that the analysis would differ if a ‘secure system’ were used.

Finally, Sir Colin also touched on a number of areas where the judiciary is exploring the deployment of AI, including for transcription purposes, and to assist in the production of judgments to remove internal inconsistencies or to anonymise them where, for example, there is a risk of jigsaw identification. However, Sir Colin was clear that, consistent with the Judicial Guidance on the use of AI (discussed here), judges are ultimately fully and solely responsible for the content of their judgments.

To read the speech in full, click here.