AI in a law firm: within professional secrecy.
A law firm may use AI with client data if it follows one of the three ways the Swiss Bar Association sets out. Without one of them, confidential information stays out of AI systems.
What professional secrecy covers
Under Article 13 of the Lawyers Act, lawyers are bound by professional secrecy without time limit and towards everyone, for everything a client has entrusted to them in their profession. They also ensure that their auxiliaries keep it. The Criminal Code, Article 321, punishes a breach with up to three years' imprisonment or a monetary penalty, for lawyers and their auxiliaries alike.
The three ways the SAV allows
The Swiss Bar Association's guideline on AI, adopted by its board on 14 June 2024, names three ways to use AI with confidential data:
- On premises: the software runs on the firm's own network, and no data leave it or are stored outside the firm's infrastructure
- Outsourcing: the provider is engaged under the SAV's rules for IT outsourcing and cloud computing
- Consent: the informed client signs a declaration of consent and waiver regarding professional secrecy and data protection
What the outsourcing route requires
The SAV's guideline on IT outsourcing, from November 2022, treats an IT provider as an auxiliary. Using one is not in principle in conflict with professional secrecy, and it needs no prior consent from the client.
- A written contract with the provider
- The provider is told that it is bound by professional secrecy as an auxiliary, and it is bound to secrecy by contract
- The contract states where the provider works, from where it accesses the data and where they are stored
- Subcontractors are limited by contract and named. If they do not commit to secrecy towards the firm directly, they should not see secret data, for example because the data are encrypted
- The SAV recommends informing clients in the engagement letter and gives a model clause
Which way fits
With a large AI provider, the outsourcing route means getting these points into its contract, for its subcontractors as well. A model on the firm's own network meets the first way without that, because no data leave the firm. Open models handle summaries, drafts and search in the firm's own documents, and they run on a single server with a suitable graphics card. I set up such systems and keep them running.
Consent fits single mandates, such as a client who wants a large data room reviewed with AI. The SAV also recommends discussing responsibility for the result with that client beforehand.
Where AI helps in a law firm
- Summarising long files, correspondence and data rooms
- Searching the firm's own submissions, opinions and templates
- First drafts of letters, contracts and submissions from the firm's templates
- Translations of documents and correspondence
- Checking that every quote and citation in a draft appears in the source
Who answers for the result
The lawyer. Under the SAV guideline, lawyers cannot claim that the AI made the mistake. AI output has to be checked independently and critically, and asking the AI whether its answer is true is no check. The SAV recommends that every firm issues an internal instruction that sets the rules for AI.
Questions
May a lawyer use ChatGPT for client work?
With confidential client data, only along one of the SAV's three ways: on the firm's own network, under the outsourcing rules, or with the informed client's consent. For text without client information, such as a draft of a general article, these rules do not apply.
Do clients have to agree when the firm uses an IT provider?
No consent is needed under the SAV's outsourcing guideline. The Data Protection Act does require informing clients about the recipients or categories of recipients of their data. The SAV gives a model clause for the engagement letter.
What does an AI system on the firm's own network need?
A server in the office or the firm's own data centre that runs an open model, a search over the firm's documents, and access rights that match those of the file system. No data leave the network, so the first way of the SAV guideline applies.