Artificial intelligence-driven notetaking or transcription tools (“AI notetakers”) are increasingly used by lawyers, clients, and others to transcribe meeting notes and generate meeting summaries. Notetakers may be embedded in videoconferencing platforms, or utilised as a standalone application.
Below, we discuss risk management concerns arising from their use, followed by recommended best practices and strategies for their implementation.
1. Accuracy and proofreading risks
Although their accuracy is improving, AI notetaking tools remain imperfect. AI-generated transcripts or summaries may contain errors or misinterpretations. Some errors may be due to the lack of human judgment (e.g. missing nuance or context, such as failing to detect sarcasm, tone, or the inflection of a sentence) resulting in significant distortions. AI notetakers may even “hallucinate” to fill in unknowns or gaps (legal or industry-specific terms of art may be particularly susceptible). Notetaking tools may misidentify speakers, especially in multi-party meetings, leading to erroneous attributions.
Adding to the problem, participants may not review or correct AI-generated notes. As a result, errors may become part of “the record.” In some situations, transcripts may be discoverable in litigation, meaning that inaccuracies could be misconstrued by an adversary. Inaccurate transcripts could also become important in a legal malpractice suit; for example, a client may rely on inaccurate notes of a lawyer’s recommendations to argue that proper legal advice was not given.
2. Data privacy and security
AI notetakers pose a threat to the privacy and security of confidential and privileged information. Many AI transcription services operate in the cloud, meaning that sensitive conversations may be stored on third-party servers. Depending on vendor terms, the data may be retained, analysed, used to train AI models, or even shared with affiliates or other third parties, imperilling confidentiality and implicating privacy concerns.
3. Discoverability
As AI notetaker use increases, so too will related discovery requests in litigation. Those discovery demands not only implicate record preservation issues but also trigger solicitor-client privilege and work product immunity concerns. If otherwise privileged meeting notes are impudently shared or disclosed (e.g. by a client representative sharing them with others in the organisation who don’t have a “need to know”), the privilege could be lost. Given their duty to safeguard clients’ solicitor-client privilege, lawyers should be exceedingly cautious before allowing AI notetakers to be used to record or summarise privileged discussions.
4. Interception of communications
AI notetakers may also breach laws regulating the interception of communications (opens a new window). In the UK, the use of interception is governed by the Investigatory Powers Act 2016. The Act makes it a criminal offence for a person to intentionally, and without lawful authority, intercept in the UK any communication during its transmission. It is not an offence to intercept a private communication if the person who carries out the interception has a right to control the operation or use of the system, or has the express or implied consent of the controller (e.g. in which a company monitors communications over its computer systems in the workplace).
If an AI notetaker is used without clear notice or consent, a lawyer or law firm may inadvertently violate these laws. The safest course is to obtain all participants’ explicit consent to recording before enabling any AI notetaker.
5. Regulatory and client compliance
Certain industries and categories of data are subject to specific regulations on the privacy and protection of information stored, transmitted or disclosed (e.g. UK GDPR). Additionally, clients may have policies or outside counsel guidelines that restrict the storage, access, or disposal of information. The use of AI notetakers without proper precautions may breach regulatory or client requirements.
Best practices to mitigate risk
If lawyers use AI notetakers, they should do so thoughtfully. Lawyers and law firms should consider the following recommended best practices and tips:
Policy and governance framework – Develop a firm policy governing when and how AI notetakers may be used. This may include identifying particular tools or applications, as well as categories of communications where use is permitted and those that are off-limits (privileged meetings, strategy sessions, depositions, etc.).
Vendor due diligence – Thoroughly vet vendors and review vendor terms, including whether transcripts are used for model training.
Confidentiality, privilege, and work product safeguards – Disable automatic activation of notetaking tools (including those embedded in videoconferencing platforms). Be exceedingly cautious with (and consider prohibiting) the use of AI tools for external meetings, especially those that are especially sensitive or where the attorney-client privilege or work product doctrine may apply. Consider standardising preliminary statements on the record announcing the use of a notetaking tool, participants’ consent, and any confidentiality, privilege or work product protections that may apply. Ensure that transcripts are labelled appropriately (e.g., “confidential and privileged”) and reflect any corrections.
Notice and consent Identify and evaluate laws regarding recording, transcription, and privacy (e.g., wiretapping laws, privacy statutes) in relevant jurisdiction(s). Before recording, announce to all meeting participants that an AI notetaker will be used, and allow any objectors to leave before starting the recording. Confirm that all participants consent to the recording and document their consent on the record. At the outset of meetings, consider asking other participants if they are using AI notetakers or other recording devices.
Accuracy review and human oversight –Carefully review transcripts for accuracy and be alert for problems such as misattribution, misinterpretations, ambiguities, fabrications, etc. Document any necessary corrections or appropriate context to ensure the transcript accurately captures the meeting.
Training and awareness – Train lawyers, paralegals, support staff about the limitations and risks of AI notetaking tools, and best practices for maintaining confidentiality, privilege, and work product protections.
Client communication – Disclose and be transparent with clients about AI notetaker use and the firm’s policies and protections in place. Consider engagement letter language disclosing the potential use of AI notetakers, explaining the benefits and risks, and permitting its use absent express client objection. Counsel clients on AI notetaker use, including notice and consent issues, and privilege and work product considerations. If a client uses an AI notetaker for meetings relating to the representation, request a copy of the transcript for review.
For more information, reach out to a member of our team.
Visit our Solicitors (opens a new window) page for more information.
