Could ChatGPT be your new divorce lawyer? - Boodle Hatfield

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16 Jun 2023

Could ChatGPT be your new divorce lawyer?

With the huge advancements in artificial intelligence (AI) over recent years, most notably with the release of ChatGPT (a new and improved ChatGPT-4 was released to paid subscription users on 13 March 2023) many are wondering how it will affect the legal sphere.

Undoubtedly, the legal industry must be ready to harness the advantages that it could offer, although there are clear limits to the ‘service’ AI can currently provide.

Putting ChatGPT to the test

At present, if you ask ChatGPT for advice in relation to fact-specific circumstances of an example divorce scenario, it will “recommend that you seek legal advice from a family law solicitor who can provide you with specific advice based on your individual circumstances”. 

When pressed in relation to specific outcomes, the bot is clear that it “cannot predict the outcome of any legal proceedings” and that independent advice from a suitably qualified lawyer is consistently encouraged “to advise [you] on the best course of action to take to achieve the outcome [you] desire”.

One of the main problems with any new advancement is that there will inevitably be numerous issues with the necessary regulation of the developing technology. In family law, confidentiality is of particular concern. Financial disclosure is of central importance during a divorce.

While solicitors and barristers are under strict professional obligations (lawyer-client confidentiality being sacrosanct), how could this apply to ChatGPT or other AI models offering basic legal advice and how would this be regulated in practice? And without being able to draw on specific details, it is impossible for any form of AI to provide tailored legal advice. Similarly, without exposure to different issues or data sets, the AI language model will not be able to adapt and improve its responses.

No room for error

Another issue with the current model is that we know that ChatGPT can suffer from what are known as ‘hallucinations’; although any such errors are stated with the same emphasis as factually correct information and analysis.

Interestingly, when we asked the model to compare and contrast complex judgments, while it was able to cope with certain themes and concepts, it did stumble over issues which arise frequently in the high net worth sphere.

For instance, there were ‘mistakes’ in the bot’s answer when considering the difference in the ways that carried interest and co-investment were dealt with by specific judges (in this example the approaches adopted by Mr Justice Mostyn in A v M [2021] and Mr Justice Coleridge in B v B [2013] respectively). Such errors could have catastrophic consequences on a party’s case, particularly if strategic decisions had been taken relying on these inaccuracies.

When asked, ChatGPT indicates that it “cannot replace the expertise and experience of a human family lawyer” which is of course a relief!

One of the reasons that it lists is “human judgment“. While it states that it can “analyse case law and provide guidance based on past decisions, family law is a constantly evolving field and requires human judgment and interpretation of the law. Human lawyers can provide insights and analysis that go beyond what is written in legal statutes and case law, taking into account social and cultural factors that may affect the outcome of a case. As an AI language model, [it] cannot fully replicate the human judgment and expertise that a family lawyer can offer.”  It recognises that it cannot meet the “emotional” demands of clients during a divorce or children proceedings.

For many, engaging with these processes is a disorientating and stressful experience and turning to another human for support is perfectly natural during these times.  A family crisis is not a scenario where ‘the computer says no’ is an acceptable response!

The human touch

Another of the main shortcomings in the current models is the inability of the bot to take on an investigative role; it cannot and will not ask questions or challenge the assumptions of the person engaging with it.

For many, this is where lawyers add the most value.

While it is difficult for a lay person to know what information might be relevant to a legal case or what particular fact a court might place more weight on, it can be difficult to know what information to present (or in the case of ChatGPT, what questions to ask).

A lawyer is trained to seek out further information – both from their clients and from the opposition. This all forms part of a lawyer’s role, to give advice to clients and to query inconsistencies – even when it might be unwelcome. Without this ability, combined with a nuanced understanding of legal procedures and strategies, key pieces of information might be overlooked that could have a significant impact on the final outcome in a case.

These limitations restrict the ability for the current models to provide personalised advice which is the intrinsic reason to employ a lawyer in the first place.

Equally, there is no ability for the AI models to advocate on a client’s behalf in court – lawyers require specific ‘rights of audience’ to appear in higher courts and, as far as the writer is aware, this has not been extended to AI models (yet!).

Similarly, the current AI models are not programmed to conduct negotiations on behalf of a client. Many cases are able to avoid court by reason of negotiated settlement agreements through solicitors.

In essence, at present, there can only be a minimal role for AI in both a current client-facing advisory role and/or within litigation or alternative dispute resolution proceedings.

Does AI have a place in law?

Whilst it is difficult to see a case for the current modes of AI within an advisory or a litigation capacity, there are a plethora of potential applications which could bring huge benefits to the sector in other functions. This could include some of the basic document management, diary administration, and parts of the disclosure exercise.

Where at times the legal sector can be slow to embrace technology, over recent years huge advances have been made, with the implementation of online case management systems, court applications moving to online portals and the more frequent use of ‘remote’ video and telephone conferencing systems for court hearings.

Momentum for change is strong and the benefits could be huge – both for those working in the sector and the service users.  AI has the potential to widen access to justice, which must be to the benefit of society.

As seems fitting, the writers will give the last word on the subject to ChatGPT: “In conclusion, while AI technology has the potential to assist family lawyers in their work, it cannot replace them entirely. The legal profession requires a combination of technical expertise, emotional intelligence, advocacy skills, and human judgment that cannot be replicated by AI alone. 

“While [it] can provide information and guidance on family law issues, it is important for those seeking legal advice to consult with a human family lawyer who can provide a personalized approach and advocacy on their behalf.”  In this regard, we totally agree.

This article was first published in eprivateclient on 15 June 2023.