BC lawyers can vote on the resolution at the LSBC’s annual general meeting on July 8
Frustrated that lawyers have been repeatedly told they bear the burden of evaluating the AI tools they use, but often lack the resources to do so effectively, two British Columbia lawyers are asking the province’s legal regulator to take on the lion’s share of the work and provide what they view as much-needed assistance to the bar.
Lawyers throughout the province will be able to vote on the resolution at the Law Society of British Columbia’s annual general meeting on Wednesday. Brought by Leena Yousefi and Ari Wormeli, lawyers at the Vancouver-based firm YLaw, the resolution proposes launching a program at the LSBC to evaluate software on how it handles issues such as confidentiality, privilege, and cross-border transfers.
The program would then certify and recommend specific software, including but not limited to AI tools, so that lawyers who use them for specific purposes “will not be found in breach of the lawyer’s duties to maintain privilege, confidentiality, or custody and control of client or practice data merely by reason of using that product or service.”
Notably, the proposed program would not restrict lawyers to only using certified tools. The resolution also emphasizes that the program would not displace lawyers’ responsibility for how they use technology in compliance with the Legal Profession Act, LSBC rules, and professional conduct rules.
From Wormeli’s perspective, the biggest beneficiary of the program would be the public. Evaluating the ever-growing range of legal technology tools available to lawyers requires a significant investment of time and resources that many law firms lack, “unless you’re Dentons or something,” Wormeli told Canadian Lawyer.
“Instead of the law society, a single source provider, taking a look at these things and telling us, ‘Hey, you know what, you can use this piece of software safely’... they basically left it a free-for-all for thousands of independent practitioners to make up their own minds,” Wormeli says. “But in my view, that’s not really accomplishing the law society’s mandate of protecting the public.”
In a LinkedIn post this week, Yousefi put it more bluntly. “We are lawyers, not privacy engineers,” she wrote, adding, “Most lawyers are not able to afford the heavy costs of hiring an expert to advise them on every single software or AI out there.”
Yousefi and Wormeli’s certification approach is novel in the legal industry – a proposal neither lawyer has seen elsewhere, but one they believe is sorely needed as the breadth of technology available to lawyers rapidly expands. While the program’s purview would not be limited to generative AI tools – the lawyers’ resolution also focuses on email, cloud, and authentication services – the issues that genAI has introduced to the legal industry in recent years, like hallucinations and deepfakes, have pushed tech safety and security to the forefront of many lawyers’ minds.
Bar associations, courts, and regulators across Canada, including the LSBC, have offered AI training or published guidelines for lawyers on using AI responsibly. The vast majority of guidelines state that lawyers who use AI tools are personally responsible for vetting them and will bear the consequences of any mistakes resulting from their use. In a Canadian Lawyer survey of Canada’s courts on how they engage with AI, for example, most courts with explicit AI policies for lawyers and self-represented litigants emphasize that lawyers and parties are ultimately responsible for the accuracy of any AI-generated materials they submit.
Still, not everyone is convinced that a centralized list of certified tools is the best way to ease the burden on lawyers navigating the legal tech landscape. In mid-June, when advanced voting began for the LSBC’s annual general meeting resolutions, the regulator’s executive director issued a statement arguing that “a robust software certification program, covering a broad range of technologies beyond AI,” would likely require significant resources.
At a meeting of LSBC benchers in early July, the agenda included a report summarizing recommendations from Allen Seckel and Lawrence Alexander, external consultants the regulator hired to help implement AI-related initiatives. The report noted that “while testing or certification of AI tools could have value, it would raise operational, liability, expertise and public confidence issues that need careful assessment by staff before an approach is recommended.”
Fraser MacLean, a Vancouver-based partner at MacLean Law who was part of the team that discovered the first known case of AI-hallucinated case law in Canada, also expressed hesitations about Yousefi and Wormeli’s resolution. However, he believes it addresses a genuine problem.
“I certainly understand why the proposal has been put forward. Technology is evolving so quickly that lawyers are looking for practical guidance,” MacLean wrote in an email Wednesday. “My question is whether certifying products is the best long-term use of the Law Society’s resources.”
Like the LSBC, the lawyer also flagged the issue of resources. “AI platforms change constantly. Models improve. Features evolve. Privacy policies change. New competitors enter the market almost monthly,” MacLean said. “Keeping certifications current could become a significant ongoing financial and time commitment. If the goal is improving competence across the profession, I wonder whether there may be an even more effective first step.”
He noted that the LSBC already requires lawyers to complete continuing professional development courses each year, and suggested that adding a “modest requirement” focused on AI and new legal technology “could have a broader and more lasting impact than maintaining a list of approved products.”
While a list of legal tools that meet baseline requirements around confidentiality, privacy, and security would help lawyers, MacLean added, he worried certification could “create a false sense of security.”
However, Wormeli rejected the suggestion that having the LSBC certify a list of approved tools would dissuade lawyers from learning about the limits of those tools. He noted that under his resolution, lawyers would still be held accountable if they use tools in problematic ways. Still, “that doesn’t mean that you [should] have to… look at the source code, right?” he asks.
“That requires a lot of time and resources,” Wormeli adds. “When we’re concerned about access to justice and so on and so forth, forcing lawyers to move out of their lane and put a bunch of time into resources and to bear liability for something that’s uncertain is, I think, counterproductive, because inevitably those costs get... passed down to the client.”
Advanced voting on the LSBC’s annual general meeting resolutions closes at 4:30 P.T. on Tuesday.
