Legal advice privilege and artificial legal intelligence: Can robots give privileged legal advice?

DOI10.1177/1365712719862296
AuthorRebecca Mitchell,Michael Stockdale
Published date01 October 2019
Date01 October 2019
Subject MatterArticles
Article
Legal advice privilege
and artificial legal
intelligence: Can robots give
privileged legal advice?
Michael Stockdale
Northumbria Law School, Northumbria University, Newcastle upon Tyne, UK
Rebecca Mitchell
Northumbria Law School, Northumbria University, Newcastle upon Tyne, UK
Abstract
Legal professional privilege entitles parties to legal proceedings to object to disclosing com-
munications. The form of legal professional privilege that is now commonly known as ‘legal
advice privilege’ attaches to communications between a client and its lawyers in connection
with the provision of legal advice. The provision of legal advice increasingly involves the use of
technology across a wide spectrum of activities with varying degrees of human interaction or
supervision. Use of technology ranges from a lawyer conducting a keyword search of a legal
database to legal advice given online by fully automated systems. With technology becoming
more integrated into legal practice, an important issue that has not been explored is whether
legal advice privilege attaches to communications between client and legal services provider
regardless of the degree of human involvement and even if the ‘lawyer’ might constitute a fully
automated advice algorithm. In essence, our central research question is: If a robot gives legal
advice, is that advice privileged? This article makes an original and distinctive contribution to
discourse in this area through offering novel perspectives on and solutions to a question which
has not previously been investigated by legal academics.
Keywords
Algorithms, legal advice privilege, robot, legal technology, professional regulation
Corresponding author:
Professor Michael Stockdale, Northumbria Law School, City Campus East, Northumbria University, Newcastle upon Tyne NE1
8ST, UK.
E-mail: m.w.stockdale@northumbria.ac.uk
The International Journalof
Evidence & Proof
2019, Vol. 23(4) 422–439
ªThe Author(s) 2019
Article reuse guidelines:
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DOI: 10.1177/1365712719862296
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Introduction
Legal professional privilege entitles parties to legal proceedings to object to disclosing written or oral
communications. The privilege has two limbs. Litigation privilege, which is capable of encompassing
confidential communications between legal adviser or client and third parties, such as expert and non-
expert witnesses, is not considered further in this article. The focus of this article is on legal advice
privilege, which attaches to confidential communications between client and lawyer made for the
purpose of giving or receiving legal advice.
The form of legal professional privilege that is now commonly known as ‘legal advice privilege’
1
has
its origins in the 16th century, with the rationale for its existence being fully developed during the 19th
century.
2
The privilege attaches to ‘communications passing between a client and its lawyers, acting in
their professional capacity, in connection with the provision of legal advice’.
3
Where it arises, it entitles
the client to object to disclosing the communication, the right to claim or waive the privilege belonging
to the client,
4
not to the legal adviser. In order for the privilege to arise, the communications must be
confidential, though the preservation of confidentiality does not, in itself, justify the existence of the
privilege.
5
Rather, its underlying rationale is that:
in the complex world in which we live there are a multitude of reasons why individuals, whether humble or
powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in
connection with their affairs; ...the seeking and giving of this advice so that the clients may achieve an
orderly arrangement of their affairs is strongly in the public interest; ...[I]n order for the advice to bring
about that desirable result it is essential that the full and complete facts are placed before the lawyers who are
to give it; and...unless the clients can be assured that what they tell their lawyers will not be disclosed by the
lawyers without their (the clients’) consent, there will be cases in which the requisite candour will be absent.
6
It is possible to identify statutory formulations of legal advice privilege for specific purposes.
7
Statute
may abrogate the privilege expressly or by necessary implication
8
and has extended similar protections
to clients of specified types of non-lawyer legal services provider.
9
Even so, the privilege remains a
creature of the common law.
10
This article makes an original and distinctive contribution to discourse in this area through offering
novel perspectives on and solutions to the question whether this common law privilege (developed in an
age when lawyers and clients communicated either orally or via documents written using quill or dip pen
and ink) can and should attach to communications between a client and a robot.
In answering this question, the following areas are investigated. First, whether the rationale under-
lying the existence of legal advice privilege encompasses communications between clients and robots.
Secondly, whether legal advice privilege at common law may be applicable to such communications.
Thirdly, whether robots may be capable of giving advice that qualifies as legal advice for the purposes of
legal advice privilege. Fourthly, whether a robot is capable of being a legal adviser for the purposes of
1. For what appears to be the earliest example of the use of the expression ‘legal advice privilege’ by the English courts see Re
Highgrade Traders Ltd [1984] BCLC 15 per Oliver LJ, para. 164.
2. See Lord Taylor of Gosforth CJ in RvDerby Magistrates’ Court, Ex parte B [1996] AC 487 at 504–506.
3. R (Prudential plc and another) vSpecial Commissioner of Income Tax [2013] UKSC 1 per Lord Neuberger of Abbotsbury
PSC, para. 19.
4. See, for example, Lord Neuberger of Abbotsbury in R (Prudential plc and another), above n. 3 at para. 22.
5. Three Rivers District Council and others vGovernor and Company of the Bank of England (No 6) [2005] 1 AC 610 per Lord
Scott of Foscote, para. 24.
6. Three Rivers District Council and others, above n. 5 per Lord Scott of Foscote, para. 34.
7. See, for example, Police and Criminal Evidence Act 1984, s. 10(1)(a).
8. See Regina (Morgan Grenfell & Co Ltd) vSpecial Commissioner of Income Tax and Another [2003] 1 AC 563.
9. See, for example, s. 190 of the Legal Services Act 2007.
10. R (Prudential plc and another), above n. 3 per Lord Neuberger of Abbotsbury PSC at para. 23.
Stockdale and Mitchell 423

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