Lawyers “could be negligent” for failing to use AI

The UK Jurisdiction Taskforce (UKJT) has issued a significant Legal Statement on Liability for AI Harms, asserting that legal professionals could be found negligent for failing to utilise Artificial Intelligence (AI) where a reasonably competent practitioner would have. This statement underscores that existing English common law, particularly principles of professional negligence, is robust enough to address liabilities arising from AI use or non-use, obviating the need for new legislation. The UKJT's position signals a paradigm shift, integrating AI proficiency into the evolving standard of care for lawyers, alongside existing duties of due diligence, client confidentiality, and transparency. This development necessitates a proactive approach from legal firms in assessing, adopting, and governing AI tools to mitigate professional risks.

The landscape of legal practice in Great Britain is undergoing a profound transformation, driven by the rapid advancements in Artificial Intelligence (AI). A pivotal development in this evolution comes from the UK Jurisdiction Taskforce (UKJT), which recently published a Legal Statement on Liability for AI Harms. This statement posits that lawyers and other professionals could face claims of negligence for failing to employ AI where a competent peer would have done so, effectively embedding AI proficiency into the professional standard of care.

This pronouncement is not merely an advisory note but a significant indicator of how English law is adapting to technological change. The UKJT's previous legal statements on cryptoassets and smart contracts have been influential, often adopted by English judges and relied upon by international investors, lending considerable weight to this latest guidance on AI. For legal practitioners, this means that the strategic integration and responsible application of AI tools are no longer optional enhancements but are rapidly becoming professional imperatives to meet evolving client expectations and regulatory standards.

The core thesis of this article is that the UKJT's statement fundamentally redefines the professional duty of care for lawyers in England and Wales. It mandates a proactive engagement with AI, requiring practitioners not only to understand its benefits but also to navigate its inherent risks, ensuring that its adoption aligns with established principles of competence, confidentiality, and client best interests, thereby avoiding potential liability for negligence.

Professional negligence in English law arises when a professional fails to exercise the reasonable care and skill expected of someone in their field, resulting in loss or harm to a client. The foundational test for assessing the standard of care in such cases is the 'Bolam test', originating from *Bolam v Friern Hospital Management Committee* [1957] 1 WLR 582. This test dictates that a professional is not negligent if they have acted in accordance with a practice accepted as proper by a responsible body of opinion in that particular field. The 'Bolitho gloss', from *Bolitho v City and Hackney Health Authority* [1997] AC 232, further refines this by requiring that the body of professional opinion must be logically defensible.

Solicitors, in particular, owe a fundamental duty of care to their clients, requiring them to act in the client's best interests and provide competent advice. This duty extends to keeping up-to-date with legal developments and practices. The Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB) regulate the conduct of solicitors and barristers, respectively, through their Handbooks and Codes of Conduct. While neither regulator has introduced AI-specific rules, they have consistently affirmed that existing professional duties, including those relating to competence, confidentiality, and client best interests, apply fully to the use of AI.

The UKJT, an industry-led initiative of LawtechUK, has a track record of providing clarity on how English law applies to emerging technologies. Its previous legal statements, such as those on cryptoassets and smart contracts, have been instrumental in providing legal certainty and have been cited in court decisions. This history establishes the UKJT's statements as highly persuasive authority, guiding practitioners and the judiciary alike in navigating novel legal challenges posed by technological innovation.

The UKJT's Legal Statement on Liability for AI Harms explicitly states that professionals may be found negligent not only for the inappropriate use of AI but also for the failure to use it when a competent member of their profession would have done so. This aligns AI adoption directly with the 'reasonable professional' standard inherent in negligence law. The determination of whether a breach of duty has occurred will depend on whether a reasonable professional of comparable rank and specialism should have used AI in that specific context, informed by professional body regulations, guidance, and expert evidence.

This interpretation significantly broadens the scope of professional competence. For instance, the UKJT cited an example where a solicitor in the Business and Property Courts might be liable for failing to advise a client to consider AI-assisted tools for reviewing large volumes of documents. This suggests that if AI offers a demonstrably more efficient, accurate, or cost-effective method for a particular task, a lawyer's failure to leverage it, or at least advise on its potential use, could fall below the expected standard of care. This is particularly pertinent given the documented efficiency gains AI can offer in tasks like document review, legal research, and drafting.

However, the UKJT's statement is not a blanket endorsement of all AI use. It equally stresses that professionals can be liable for a lack of reasonable care and skill *when using* AI. This includes failing to conduct proper due diligence on an AI system, particularly if it is new or untested, failing to explain its use to clients, and crucially, failing to check AI outputs for errors and biases. The SRA and BSB guidance reinforce this, emphasising that solicitors and barristers remain personally responsible for all work, regardless of AI involvement, and must verify AI outputs, protect client confidentiality, and be transparent. The BSB, for example, specifically warns against using free, publicly available AI tools like ChatGPT for client work due to data privacy and confidentiality concerns.

The implications extend to the need for continuous professional development in AI literacy. Both regulatory bodies encourage maintaining a basic level of technology and AI competence, even for those who do not directly use the tools, to understand their impact on practice and potential use by opposing counsel or clients. This highlights a shift from merely understanding legal principles to also understanding the technological tools that shape legal service delivery. The risk of 'hallucinations' (inaccurate or fabricated information) by generative AI tools, as seen in recent cases, underscores the critical need for human oversight and verification of all AI-generated content presented to courts or clients.

The UKJT's Legal Statement on Liability for AI Harms marks a watershed moment for the legal profession in Great Britain, unequivocally signalling that AI competence is now an integral component of the professional duty of care. For practising attorneys, this means that a passive stance towards AI is no longer tenable. Firms must proactively assess the appropriate integration of AI tools into their workflows, ensuring that such adoption enhances efficiency and client service without compromising ethical obligations or the quality of legal advice.

Practitioners should undertake thorough due diligence before deploying any AI system, establish clear internal policies for its use, ensure robust oversight mechanisms for AI-generated outputs, and invest in continuous training for their teams. Transparency with clients regarding the use of AI, particularly where it materially impacts the nature or scope of legal services, is paramount. As AI technology continues to evolve, legal professionals must remain vigilant, adapting their practices to leverage AI's benefits while rigorously managing its inherent risks to uphold their professional responsibilities and avoid potential negligence claims. The future of legal practice demands not just legal acumen, but also technological literacy and a commitment to responsible innovation.