Lawyers Covered - February 2024

Lawyers continue to face a wide range of challenges, and we are here to help guide you through them. So, welcome to the latest edition of our Lawyers Liability & Regulatory Update, in which we look back over the last month at key developments affecting lawyers and the professional risks they face.

1. Quid game – fixed costs; pick your battles

Ordinarily, the claims that make the headlines are those that have the highest value or the most significant impact on the public. With the costs landscape ever-changing in civil claims, without careful planning and strategy, even modest claims can end up biting defendants in the longer-term.

Read our recent article here on the claim of Drury v Yorkshire Aggregates which is one such matter. 

2. Bar Council publishes AI Guidance

The Bar Council has published guidance on the use of generative artificial intelligence (AI) software such as ChatGPT by barristers. This comes not long after The Law Society's guidance providing essential know how for solicitors and firms on the opportunities and risks posed by AI.

The Bar Council's guidance focuses largely on the use of AI 'large language model' (LLM) systems such as ChatGPT. The guidance states that there is nothing "inherently improper" about using such tools for augmenting legal services, but they must be properly understood and used responsibly.

The guidance identifies three key risks associated with using systems such as ChatGPT:

1. Anthropomorphism: an inherent risk is that LLMs are designed and marketed in such a way as to give the impression that the user is interacting with something that has human characteristics. 
2. Hallucinations: this term is used to describe the phenomenon where an LLM's outputs may sound plausible but are either factually incorrect or unrelated to the given context. 
3. Information disorder: LLMs may inadvertently generate misinformation.

A further key consideration highlighted in the guidance is that barristers (and by extension solicitors) must be vigilant not to input legally privileged, confidential information or personal data into LLM systems. Any input information provided is likely to be used to generate future outputs and could therefore be publicly shared with other users. Any sharing of such information may put legal professionals at risk of a breach of their professional duties and open them up to disciplinary proceedings and/or legal liability.

Cautionary tales

Two New York lawyers representing a plaintiff inadvertently submitted a brief that included six fictitious cases 'invented' by ChatGPT. One of the lawyers produced an affidavit explaining that he had used ChatGPT to supplement legal research and that ChatGPT had "provided its legal source and assured the reliability of its content". A Judge imposed sanctions on the two lawyers, fining them and their firm $5,000. In his decision, the Judge found that the lawyers had acted in bad faith and made "acts of conscious avoidance and false misleading statements to the court".  

In Harber v HMRC [2023] UKFTT 1007 (TC), a litigant in person in England & Wales also appears to have potentially fallen foul of ChatGPT hallucinations in her submissions before the First Tier Tribunal (Tax). The Tribunal found that "the cases in the Response are not genuine FTT judgments but have been generated by an AI system such as ChatGPT that appeared not to actually exist" (although they found that the litigant in person was not aware that the cases were fabricated). 

3. Fixing up the rules: changes to the fixed recoverable costs regime coming soon to a White Book near you!

The extension of fixed recoverable costs (FRC) to most simpler claims for £100,000 or less came into force on 1 October 2023, triggering arguably the biggest sea change in litigation tactics since the increase of costs budgeting in 2013. Practitioners are eagerly awaiting the first decisions to see how the Court deals with tricky issues such as the effect of the transitional provisions and assignment of a complexity band. In the meantime, the Civil Procedure Rules Committee and the Ministry of Justice have been busy refining the rules and the 163rd update to the Civil Procedure Rules has been published. We've read it all so that you don't have to and explain in our new article what's new in the world of FRC.  

4. High Court judge issued with formal advice for misconduct over late judgment

A High Court Judge has been given a misconduct warning after taking over a year to deliver his judgment on a case. Mr Justice Edwards Murray faced a Judicial Conduct Investigations Office (JCIO) probe after he delayed issuing a judgment for 15 months following the hearing and failed to give the parties any proper indication as to when they could expect to receive the judgment. He expressed his regret for the delay and blamed this on a busy sitting schedule and a lack of judgment writing time. However, the JCIO noted that he had reflected on this and recognised that he could have been more proactive about obtaining more judgment writing time if this was needed. The JCIO confirmed that the judge had been issued with formal advice for misconduct. In order of severity, the sanctions for misconduct by judicial office holders are: formal advice, formal warning, reprimand and removal from office. The JCIO also noted that the guide to judicial conduct requires judges "to display diligence and care" in the discharge of their judicial duties. 

5. Hong Kong: Judiciary trials live broadcasts of Court of Final Appeal hearings

In December 2023 the judiciary in Hong Kong announced that it would commence a trial run of live broadcasts for select appeal hearings before the Court of Final Appeal. Two final appeals in mid-January 2024 were chosen for the trial run. 

The first broadcast on 10 January 2024 was of the appeal in MK v Director of Legal Aid, which we covered in our August 2023 edition. The final appeal will determine, as a matter of statutory interpretation, the nature and extent of legal professional privilege in the context of a legally aided person's eligibility for legal aid; in particular, whether a legally aided person can claim (against the Director of Legal Aid) the protection of legal advice privilege in respect of confidential communications that were created before the grant of legal aid.  At the time of writing, the Court of Final Appeal's judgment is highly anticipated – watch this space.

The live broadcasts of the two final appeals in January 2024 appear to have gone well and, on 9 February 2024, the judiciary announced a second trial run for two more final appeals on 4 March and 3 May 2024.  

The purpose of live broadcasts is to enhance the transparency of court hearings and public confidence in the judicial process. The main objective of the trial runs is to test the technical feasibility of the arrangements, which involves members of the public logging on to the live broadcasts via desktop computers or mobile devices. 

Appeal hearings lend themselves to live broadcasts because they usually focus on more important points of law.  Visual or audio broadcasts of appeal court proceedings already happen to varying degrees in jurisdictions such as (for example) England and Wales, Australia, Canada and the USA – it is time that Hong Kong caught up in this regard, while learning lessons from other jurisdictions. 

Additional Contributors: Sally Lord, Aimee Talbot & Catherine Zakarias-Welch