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The fee reflects the work done. The fee record is true. Where AI changes the cost of the work, that is discussed with the attorney, preferably when the brief is accepted.
Red · Must Orange · Should A false fee record breaches an existing duty. The rest is recommended practice.
The rules
“Counsel shall, in calculating a fee for services rendered or to be rendered, be mindful that the profession of advocacy is primarily vocational and exists to serve the public interest, and accordingly, shall charge only reasonable fees for all work undertaken.”
LPC Code of Conduct, para 29.1
Paragraph 29.2 lists the factors relevant to a reasonable fee, “none of which is determinative”. The first is “the time and labour required” (para 29.2.1). Paragraph 29.3 requires counsel to guard against both overvaluing and undervaluing the services.
“shall not mark a brief, or in any form record a description of fees in any record of account, which is false or misleading as to the true nature of the brief or of the services rendered;”
LPC Code of Conduct, para 34.6
Paragraph 34.5 requires records of account that accurately record, among other things, the nature of the service rendered and the dates of performance.
The GCB Uniform Rules are to the same effect: counsel is entitled to a reasonable fee for all services, and the time and labour required is one of the considerations in fixing it (rules 7.1.1 and 7.1.1.1).
Red · Must Fee records
- Where the fee is based on time, only time actually worked is recorded. The time the task would have taken without AI is not.
- The work is described truthfully in the records and the account.
- Time during which a tool runs unattended is not professional time. The time recorded is the time spent instructing, reading, checking and revising.
Orange · Should Fees and costs
- If AI changes the cost of the work, it is discussed with the attorney, preferably when the brief is accepted.
- Whether any tool costs will be charged, and how, is agreed in advance.
- On fixed or daily fees, the fee is tested against all the factors in paragraph 29.2, not time alone. The use of AI does not turn an agreed fixed or daily fee into an hourly one.
- Time spent learning a tool is ordinarily counsel’s own investment, not the client’s cost, unless agreed otherwise.
Guide 11 gives an example of a fee narrative for AI-assisted work, and of the conversation with the attorney.
No South African judgment on AI and fees is on file.
Other jurisdictions
In New Zealand, lawyers may need to review their billing practices where generative AI now does tasks previously done by people, particularly under a time-and-attendance model (New Zealand Law Society, Lawyers and generative AI, March 2024). In Ontario, the duty to charge reasonable fees and disbursements is one of the six obligations the regulator identifies as engaged by generative AI (Law Society of Ontario, Generative AI: your professional obligations, section 5). In British Columbia, a lawyer must not charge a fee or disbursement unless it is fair and reasonable and has been disclosed in a timely fashion, and the regulator asks what a fair fee is for work completed by a generative AI tool (Law Society of British Columbia, Guidance on professional responsibility and generative AI, Code rule 3.6-1). The international comparison has the detail.
Sources on file: LPC Code of Conduct (GG 42337, 29 March 2019), paras 29.1–29.3, 34.5 and 34.6. GCB Uniform Rules of Professional Ethics (as updated July 2024), rules 7.1.1 and 7.1.1.1. New Zealand Law Society, Lawyers and generative AI (March 2024). Law Society of Ontario, Generative AI: your professional obligations (2024), section 5. Law Society of British Columbia, Guidance on professional responsibility and generative AI (2023).
Status. A proposed guideline, put forward by Greg Fourie SC for discussion. It has not been adopted by the Legal Practice Council, the General Council of the Bar or any society of advocates. Read the Code itself before relying on it.