Nicolene Schoeman-Louw | SchoemanLaw Inc   

Category: Commercial Law | Technology Law 

For many law firms, the thought of AI has not been all moonlight and roses. In many instances, there is a fear that it signals the end of our profession, whilst in other cases, a deep sense of distrust. The term AI is also a collective for Artificial Intelligence which refers to the simulation of human intelligence processes by machines, especially computer systems. There are many times including Generative AI or Natural Language Processing such as Chat GPT. Other types include reactive machines and limited memory bases.  

According to, among other publications, the Sunday Times and Radio 702, in 2023, attorneys argued a case in the Johannesburg Regional Court. Still, they were recently called out for using fake references generated by ChatGPT. Consequently, the court declared that the names, citations, facts and decisions presented by the lawyers in court were not accurate and ordered a punitive cost order. This leads to a concern about our ability to research and reason as professionals.1  

But conversely, in the matter of Makunga v Barlequins Beleggings Pty Ltd t/a Indigo Spur in the Western Cape High Court under case number 9733/2017, the Plaintiff, Mr Makunga, appeared in court himself in a dispute over a cancelled transport agreement with Spur. The judge noted the following: "Finally, I must mention Mr Makunga's heads of argument. He filed heads of argument, which contained extensive reference to case law. In cross-examination, he was asked whether he prepared them himself. He said he had, relying only on Google's assistance. Mr McLachlan expressed his disbelief. In argument, he told me that many of his colleagues were equally incredulous and were convinced only a lawyer could have drafted the heads. I admit that I have seen worse heads of argument prepared by members of the Bar. But this does not evince dishonesty to me. Rather, it shows Mr Makunga's perseverance and commitment and the fact that lawyers need to watch out for artificial intelligence. One day soon, the computers are coming for our jobs." 

Regardless of our views, the fact is that AI technologies will increasingly be embedded in the products we use. Moreover, like any implementation of new tools and technology, however, this does require some strategy. 

Part of that strategic planning process will include identifying pain points in the current way of doing things. This could consist of automating some more administrative functions or even marketing functions. Overall, we are generally open to using Gen AI, but there is considerable scepticism about leveraging AI in core legal work. That may be where the immediate opportunity lies. 

According to Thompson Reuters, some critical first steps that firm leaders could take include:2 

Review goals, processes and tools for client communications. Find new ways to provide more responsive client service. Assess markets and identify business opportunities. Dealing with large data sets 

Gen AI has the potential to transform the substantive legal work at the heart of a law firm's value to clients, with a wide range of potential applications and advantages, including: 

Legal research, conducted with appropriate AI prompting and coupled with human critical thinking and problem-solving, can save a lot of time. It should be noted that many open-source AI (like Chat GPT) make use of data sets which are not all from reliable sources, which may affect the accuracy of the results. AI should not be your only resource (particularly in the case of free/open source platforms) if conducting research. Drafting, however, attorneys should note the contents of the privacy policies of the platforms used and ensure that personal data is not inserted into these platforms. Many of these platforms need clear or even adequate policies around data protection. This can lead to breaches, which may lead to a violation of attorney-client privilege – with far-reaching consequences. In addition, we need to be aware that we have seen some bias generated by AI. For example, A few weeks ago, a woman typed in a list of interests. And it gave her some jobs that she might want to consider. And then she said, "Oh, and I'm a woman." And then it said, "Oh, well, you should also consider fashion." And then she said, "No, no. I meant to say I'm a man." And then it replaced fashion with engineering. Document review can be beneficial as we will be inserting the data into the AI—however, my earlier comments on privacy need to be considered. 

Many AI platforms remain free, which means that for smaller firms, there is a real opportunity. However, we should do the necessary research and all law firms need to take a strategic approach. We need to educate ourselves and be mindful of the use of these tools. 

No one knows for sure what the future of Gen AI will look like, but one thing is for sure – it is not going anywhere anytime soon. 

Nicolene Schoeman-Louw | SchoemanLaw Inc   

Specialist Technology, Commercial and Contract Law  

https://schoemanlaw.co.za/our-services/commercial-law/  

https://schoemanlaw.co.za/our-services/contract-drafting/ 

https://schoemanlaw.co.za/our-services/technology-law-smart-contracts-and-cyber-law/