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ChatGPT – whose work is it anyway?

ChatGPT
In 2023, ChatGPT passes the New York bar exam and is elected Dean of Harvard.

ChatGPT – the nifty piece of AI-driven software that can quickly conjure documents and research out of cyberspace – is all the rage at the moment.

There is no doubt it is an amazing piece of kit – for more information and the ethical aspect, check out this article.

While it is far more than Austlii on steroids, there is no question that law firms across the country will be gearing up to use it (or, more accurately, products derived from it) as a force-multiplying tool, utilising it for research tasks and drafting first versions of documents. The question is, what do you charge for that?

Traditionally solicitors charge for the time they put into a task that involves actual legal work – researching recent cases to update existing expertise, drafting advices, applying their own knowledge and skill to pre-existing precedents to create documents, putting together trial plans, etc. All of those tasks involve a solicitor utilising their own knowledge in doing the task.

Using AI-enabled systems is a little different. A solicitor can set it a task – say, to research a particular point of law – and away it goes, without further input, and creates a draft advice. The solicitor cannot be said to have put any legal skill or knowledge into that process, and so arguably cannot charge legal rates for that.1

Thoroughly reviewing and settling the advice or document? No problems; but charging the same amount of time it used to take you, pre-ChatGPT, isn’t an option.

It is possible the use of AI tools will drive a move towards fixed-price charging, which might deliver more certainty for the client and better outcomes in the long run, but the road there will probably be a little bumpy.

As always, a clear and thorough retainer is going to be of great assistance. It is also worth noting that an annual subscription fee for an AI product will fall firmly within the bounds of overheads, and cannot be charged as an outlay.

If a ‘per matter’ subscription licence is available, a specific provision in your costs agreement permitting recovery of this charge is advisable to remove any doubt whether it is a disbursement or an overhead.

Solicitors bring far more to legal services than any bot, and are rightly able to charge accordingly. Getting the two confused, however, will likely lead to trouble.

For assistance with this or other practice issues, please contact the Queensland Law Society Ethics and Practice Centre, ethics@qls.com.au.

Footnote
1 Interestingly, software has been found to be performing legal services, but not in circumstances which assist us here – see In re Peterson (Bankr D Md, No.19-24045, 1 June 2022).

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