The Use Of ChatGPT In The South African Legal Fraternity - The Concerns Of Futuristic Tools.

ChatGPT has become a significant topic of discussion since its release in November 2022, gaining over 100 million users and around 13 million daily unique visitors. While its capabilities—ranging from answering questions to passing academic law exams—are impressive! However, the South African legal profession requires careful consideration when it comes to ChatGPT.1 

Content of ChatGPT 

From a legal perspective, it is essential to recognize that OpenAI does not claim ChatGPT as a substitute for professional legal advice. Its terms of use explicitly state that a qualified individual must review the outputs. ChatGPT is not designed to provide binding legal guidance, and relying on it without professional oversight contravenes acceptable legal standards. This is particularly critical for legal professionals who may be tempted to use it for extensive legal research or analysis. 

OpenAI acknowledges that when ChatGPT is used in the legal sector, particularly in direct-to-consumer contexts, a disclaimer must be provided to inform clients about the use of AI and its inherent limitations. The responses generated by ChatGPT can vary based on how a prompt is phrased, and repeated attempts may yield inconsistent answers. Although ChatGPT Plus offers enhanced capabilities, OpenAI admits that the platform may produce information that seems plausible but is, in fact, inaccurate. This poses significant risks in the legal field, where precision is essential. 

Another concern is the uniformity of ChatGPT-generated content. Its standardized responses can diminish the personalized service that clients expect from legal professionals. Tailored advice is crucial, and reliance on AI-generated content may compromise this standard.2 

Legal practitioners being targets of ChatGPT 

New legal practitioners, such as candidate attorneys, are particularly at risk. Their development of practical legal skills relies heavily on the processes of legal reasoning, research, and drafting. Sole reliance on AI tools could hinder their ability to understand and apply legal principles critically, which are core competencies expected under paragraph 18.14 of the Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners, and Juristic Entities. 

OpenAI clearly states that its services are provided "as is," with no accuracy warranty. Additionally, its privacy policy raises concerns about data protection. The platform collects user data across various sites and does not currently respond to "Do Not Track" signals. The use of personal data to analyze or improve ChatGPT's performance could compromise the confidentiality obligations outlined in both the Code of Conduct and the Protection of Personal Information Act 4 of 2013 (POPIA).3 

ChatGPT in relation to legislation 

Under POPIA, legal practitioners, as responsible parties, must take reasonable measures to secure client information and prevent unauthorized access. Inputting personal client data into ChatGPT risks violating these statutory obligations. Such a breach may lead to reputational damage, criminal liability, or administrative penalties. 

The Electronic Communications and Transactions Act 25 of 2002 (ECTA) further complicates the situation. Even if ChatGPT is considered an intermediary, the legal practitioner remains the "originator" of any data message sent through the tool. Therefore, liability for misinformation or improper data use still lies with the practitioner. 

Although OpenAI does offer an opt-out mechanism for users who wish to prevent their data from being used for training purposes, there remains ambiguity regarding what it means to "provide and maintain" API services versus "develop and improve" the model. This lack of clarity should encourage caution when inputting sensitive client information into the system.4 

Conclusion 

Ultimately, while ChatGPT presents opportunities to enhance efficiency in legal practice, legal practitioners must understand its limitations. Any use of this technology must comply with the Code of Conduct, ECTA, POPIA, and the guidelines issued by the Law Society of South Africa. Client confidentiality, legal privilege, and adherence to professional standards must remain top priorities. Should you require any legal assistance or advice with a matter, contact an attorney at SchoemanLaw.  

Riaan Basson | SchoemanLaw Inc    

Candidate Attorney   

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