Tony Pearce
In the famous “H Tomkinson” letter of 12 July 1816, Thomas Jefferson wrote to Samuel Kercheval:
I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, and new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain under the regime of their barbarous ancestors.
In referencing the “boy’s coat”, Jefferson was saying it was as ridiculous for a man to try to wear a boy’s coat as it was for society to stick to outdated laws and processes.
As readers of this article will likely agree, we live in an increasingly complex legal arena. Change is often inconvenient and can be challenging. While the letter above related to perceived unfairness in the original Constitution of the State of Virginia, it is just as applicable when technological challenges impact on our working lives as lawyers.
This article is not about change in the laws under which we live and work. It relates to fear of change and innovation in practice, identified risks and the opportunities AI presents.
Change as liberation
The practice of law demands change, some of which is seemingly daunting. However, we must learn to come to terms with and live with new technologies. To change is to survive, and remining competitive is part of that.
As a “veteran” English contentious trust and estate solicitor, I have experienced many changes in practice. These range from dictating into an analogue tape machine (with my own secretary typing letters on a manual typewriter which then came to me to sign and correct if necessary), to a “286” computer arriving in a box on my desk on a Monday morning, to remote working and AI.
Not all adaptation has been easy (how do I turn the computer on? How do I create an email address?) but looking back, the changes have been liberating.
However, there is no room for complacency when adopting new and innovative work practices. Risks must be evaluated and potential benefits understood. Patience is a must, as is the need for quality training and support.
Misleading the court
I was driven to redraft a previous version article, in part due to a warning notice published on 17 August by the Solicitors Regulation Authority (SRA). The warning notice is stark and unforgiving in drawing attention to the consequences of falling short of what is required in relation to the use of AI and highlights the consequences if you get it wrong.
The notice warns of the misuse of AI, highlighting two areas of concern. They (rightly) require solicitors to focus on the risk of misleading the court and breaching client confidentiality through use of AI. The warning notice is a good and timely reminder of the risks misuse or misunderstanding of AI can present.
Take AI hallucinations. To be entirely honest, while I had occasionally read about AI and what it might be capable of, I did not really follow what was going on in the market. I was largely behind the game in relation to developments in computer/AI technology, even as recently as 18 months ago. I was amazed to learn around that time that AI had an ability to dream up and construct mythical legal authorities.
AI was not something that I felt I needed and, while of interest, the technology was for someone else. I had my new copy of Willliams, Mortimore and Sunnucks Executors, Administrators and Probate on the shelf in front of me and Practical Law at the touch of a button.
Risk of contempt
The warning notice drives home the potential seriousness where fabricated authorities and citations have been presented to a court.
R (on the application of Ayinde v Harringay LBC [2025] EWHC 1383 (Admin) involved two cases and illustrated that courts will likely treat the submission of fabricated cases and citations as improper and unreasonable conduct with the potential of a referral to the lawyer’s regulator. Indeed, it appears that such a lack of proper attention to the need to avoid misleading the court could amount to contempt.
In Brett v The Solicitors Regulatory Authority [2014] EWHC 2974 (Admin) it was stated, “one of the most serious offences that an advocate or litigator can commit is misleading the court”. Not only would a lawyer in breach of that duty face serious disciplinary difficulties but the lawyer and firm could be on the hook for a wasted costs order, perhaps including the hearing or even trial costs.
The second risk identified in the warning note relates to breach of client confidentiality. In UK v Secretary of State for the Home Department [2026] UKUT 81(AC) the tribunal observed that “..to put client letters and decision letters from the Home Office into an open-source AI tool, such as ChatGPT, is to place this information on the internet in the public domain.”
Despite clear warnings relating to the misuse of AI, there have been a couple of recent, well publicised cases with even large law practices falling foul of the need for care and vigilance. I understand there are several investigations underway at the SRA.
Professional misconduct?
I have considered the guidance issued by the New Zealand Law Society (NZLS) on 14 March 2024 which draws practitioners’ attention to the regulatory framework, the opportunities and risks for lawyers and other related guidance.
The marked difference, in my view, between the warning note issued by the SRA and NZLS guidance is that the SRA notice emphasises the serious and present risk of professional misconduct.
This is heavily promoted in the SRA warning.
I am not criticising the NZLS approach and profess to be rather encouraged by the section in the guidance note regarding the opportunities sensible use of AI ought to bring to the legal profession. AI is here to stay, and we must adapt as individuals and lawyers to that reality.
Sensible use
For the profession here and in New Zealand, there may be downward pressure on fees. The legal market could shrink but for those who grasp the nettle and develop the necessary skills and understanding, there is good reason to make sensible use of AI.
AI tools allow you to think outside the box. Having gained a much better understanding of AI, I have found it has proved to be a useful assistant – not one I can rely upon to the extent of using it in court submissions or pleadings, but the system’s ability to take a wide look at a set of facts and the legal horizon is often, but not always, helpful.
Doomsayers asserting the 1811 Luddite reality, predicting that AI will spell the end of the professions, are missing the point. As Courtney C Radsch (a non-resident Fellow of Governance Studies at the Centre for Technology Innovation), said in an article written for The Brookings Institution: “It’s time to rehabilitate the Luddites as guides for the present. They understood that the future is not written by the machine, but by those who wield it.”
Used carefully, AI will prove to be an invaluable tool. Safe use requires an acceptance of change. We will all need, as individuals and lawyers, to adapt to that change but must do so carefully. I am now a convert to AI.
I vividly recall being amazed when I first watched Stanley Kubrick’s 2001: A Space Odyssey. When HAL malfunctioned due to a “fatal logic paradox”, the consequences were disturbing. Anyone who has not seen the film might be interested in how advanced it was for its time and the warnings it indicated.
And yes – AI was used in the preparation of this article, and I include direct references to the SRA warning notice mentioned.
UK-based Tony Pearce is a partner at international law firm Spencer West and is a special advisor to The Law Association’s Trust Law Committee
Hamid v Secretary of State for the Home Department
Munir v Secretary of State for the Home Department
Brett v The Solicitors Regulation Authority [2014] EWHC 2974 (Admin) (11 September 2014)
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