Tips for lawyers when using ChatGPT
ChatGPT when used correctly can be a great benefit to Australian lawyers. We have certainly come along way from the humble Miscrosoft office paperclip of the 90s. ChatGPT can quickly perform preliminary tasks, allowing lawyers to focus on more nuanced legal work that requires human expertise. Moreover, ChatGPT's capacity to work in natural language can be invaluable for communicating complex legal concepts in layman's terms, which is essential for client interactions.
However, it's crucial to remember that AI should support, not replace, the critical analysis and judgement that experienced lawyers provide. Check out our top ten tips for using ChatGPT below.
Tip 1:
Use these tools with the expectation that one day your prompt may be read aloud in Court.
Tip 2:
Whatever you do, don’t enter or expose client information to any third party service provider without their explicit, informed, written consent.
Tip 3:
Give the tool the necessary background to understand what you want to achieve. Example prompt:
“I am an Australian lawyer advising a [commercial] client on an [employment agreement] with a [marketing officer]. I want you to help draft the agreement, before we begin, what further background information should I give you about me to ensure you operate at your best performance?”
“ChatGPT
To assist you effectively in drafting an employment agreement, I would need the following background information:
1. Details about the Client and Business: The nature of your client's business, the industry they operate in, and any specific commercial goals or considerations that may impact the employment terms.
2. Role Specifics: A detailed job description for the marketing officer role, including responsibilities, expectations, and any specific skills or qualifications required.
3. Employment Type: Whether the role is full-time, part-time, casual, or fixed-term, and any probationary period terms.
4. Remuneration and Benefits: The salary, bonus structure, superannuation contributions, and any other benefits (like health insurance, car allowance, etc.).
5. Working Arrangements: Information on working hours, flexibility, remote work options, and travel requirements.
6. Intellectual Property and Confidentiality: Any clauses relating to the protection of intellectual property and confidentiality requirements.
7. Non-Compete and Non-Solicitation: Whether there will be any non-compete or non-solicitation clauses to protect the client’s interests after the employment ends.
8. Termination Conditions: Notice periods, grounds for termination, and any severance package details.
9. Applicable Laws: Any specific Australian state or federal laws that need to be considered or complied with, including awards or enterprise agreements.
10. Dispute Resolution: The mechanism for handling disputes should they arise.
11. Previous Agreements and Precedents: If there are any existing employment agreements or precedents that your client typically uses or would like to model this agreement on.
12. Cultural and Ethical Considerations: Any particular cultural, ethical, or social considerations that should be reflected in the agreement.
Having a comprehensive understanding of these elements will help in crafting an employment agreement that is tailored to your client’s specific needs and compliant with Australian employment laws and regulations.”
Tip 4:
Get impartial feedback on your drafting. ChatGPT can review proposed language and help you consider potential ambiguities and gaps. Example prompt:
“Review this clause and tell me if it could be improved. If so, how and why?:
Subject to any written agreement to the contrary, all Intellectual Property Rights created by the Employee solely or jointly with others in the course of the Employee’s employment automatically vest in the Company.”
“ChatGPT
The clause you've provided is a standard provision relating to the assignment of intellectual property (IP) rights created during employment. Here are some suggestions to improve the clause:
1. Define Intellectual Property Rights: Clearly define what is meant by "Intellectual Property Rights" to avoid ambiguity. This could include inventions, designs, software, writings, and other creations.
2. Specify the Scope of Employment: Clarify what "in the course of the Employee’s employment" means. Does it include all working hours, or also work-related activities conducted outside of normal working hours?
3. Address Pre-existing IP: Ensure there are provisions that distinguish between IP created before and after the commencement of employment to protect both the employee’s and the company’s interests.
4. Consider Moral Rights: Address the issue of moral rights, which in some jurisdictions cannot be assigned but can be waived.
5. Outline the Process for Handling IP: Provide a process for how IP is to be disclosed by the employee and assessed by the company.
6. Address IP Created in Collaboration with Third Parties: If the employee is likely to collaborate with third parties, the clause should address how IP rights are handled in such situations.
7. Provide for Exceptions: There might be statutory or common law exceptions that could override this provision, such as certain rights under the Australian Copyright Act 1968 (Cth) that cannot be assigned by default.
Here is an example of a revised clause:
"Subject to any specific written agreement and applicable laws, all Intellectual Property Rights as defined herein, including but not limited to inventions, designs, software, and writings created, conceived, or reduced to practice by the Employee, either independently or collaboratively during the course of employment, shall be promptly disclosed to the Company and are to automatically vest in the Company. The Employee agrees to perform all necessary acts to effectuate such assignment. This clause shall not apply to Intellectual Property developed entirely on the Employee’s own time without using the Company's equipment, supplies, facilities, or trade secret information, and which does not result directly from the Employee's duties at the Company or relate to the Company's business or anticipated research and development."
The improvements aim to clarify the scope and process of IP assignment, align with legal standards, and protect the interests of both parties. Legal advice should be sought to ensure the clause is compliant with current laws and effectively protects the company's interests without being unfairly burdensome on the employee.”
Tip 5:
Consider alternative clauses you could use. ChatGPT can provide a range of alternatives you can tweak to find the wording that suits your client’s situation in the best possible way. Example prompt:
“Draft three alternative clauses to the above”
“ChatGPT
Certainly, below are three alternative clauses that cover the assignment of intellectual property (IP) rights created by an employee:
Alternative Clause 1: Definition and Assignment of IP "Intellectual Property Rights (IPR), as used herein, include all forms of intellectual creations, such as inventions, designs, software, trade secrets, and literary works created by the Employee, either alone or with others, during the period of employment. Except where a separate written agreement delineates different terms, any and all IPR developed by the Employee during the employment period, that are related to the business of the Company or result from the performance of the Employee's duties, shall immediately and irrevocably be assigned to the Company. The Employee is obliged to assist in the formal assignment of such rights and execute all documents necessary to register such IPR in the name of the Company."
Alternative Clause 2: Scope of Work and IP Ownership "During the tenure of the Employee’s engagement with the Company, any inventions, creative works, designs, or other intellectual properties that are made by the Employee, whether solely or in collaboration, and that are related to or arise out of the scope of the Employee’s assigned duties, shall be the exclusive property of the Company. This includes any work that the Employee may complete during hours outside of the normal business schedule, provided that it pertains to the Company’s domain and utilizes any Company resources. The Employee agrees to sign any documentation which would effect or confirm the direct transfer of such ownership rights to the Company."
Alternative Clause 3: Creation, Disclosure, and Assignment of IP "All Intellectual Property created, designed, or developed by the Employee, whether independently or in conjunction with others, which relates to the field of business of the Company or is in any way connected to the Employee’s duties, shall be disclosed to the Company without undue delay. The Employee shall assign to the Company all right, title, and interest in such Intellectual Property and acknowledge that all such Intellectual Property will be the sole property of the Company. For the avoidance of doubt, Intellectual Property that is developed by the Employee in their own time and without the use of Company resources or confidential information, and which is not related to the Company’s business or anticipated research, shall remain the property of the Employee."
These clauses are designed to clearly outline the rights and responsibilities related to intellectual property created during employment. They ensure that the company's interests are protected while also considering the rights of the employee. It is advisable to consult with legal counsel to tailor these clauses to specific circumstances and ensure compliance with applicable laws and regulations.”
Top 6:
Use it to assist(!) you to identify legal issues you will need to check off before sending a draft version to the client.
“Example prompt: “What legal issues might arise for my client in entering this agreement?”
When entering an employment agreement, particularly one involving intellectual property rights, several legal issues may arise for your client. It's important to consider and address the following:
1. Compliance with Law: Ensure that the agreement complies with relevant employment and IP laws, including the Fair Work Act 2009 and other Australian state laws.
2. Clarity of Terms: The agreement must clearly define what constitutes intellectual property and the scope of employment to prevent disputes over ownership.
3. Employee's Pre-existing IP: The agreement should not infringe on any pre-existing intellectual property that the employee brings into the company.
4. Moral Rights: In Australia, moral rights, such as the right to be attributed as the author of a work, cannot be assigned, though they can be waived. The agreement should address these rights appropriately.
5. Restrictive Covenants: Any non-compete, non-solicitation, or confidentiality clauses must be reasonable in scope, duration, and geography to be enforceable.
6. Invention Assignment: Any clause regarding the assignment of inventions may need to be reasonable and not overly broad to be enforceable.
7. Remuneration for IP: If the IP created is exceptionally valuable, there may be an expectation or obligation to provide additional remuneration for the IP created beyond normal salary.
8. Use of Company Resources: The agreement should specify what constitutes the use of company resources when creating IP.
9. Dispute Resolution: Establish a clear mechanism for resolving any disputes that may arise out of the agreement.
10. Termination of Employment: The agreement should specify what happens to the ownership of IP upon termination of employment.
11. Assignment and Delegation: The agreement should address whether the employee can assign their rights or delegate their duties under the agreement.
12. Protection of Third Party Rights: Ensure that the creation or use of the IP does not infringe on the rights of third parties.
13. Confidentiality: The employee's obligation to maintain confidentiality during and after employment should be clearly outlined.
14. Amendments: Any amendments to the agreement should be in writing and signed by both parties.
15. Governing Law and Jurisdiction: The agreement should specify which law governs the agreement and where disputes will be resolved.
Before finalizing the agreement, it would be prudent to have it reviewed by a legal professional who specializes in employment and intellectual property law to ensure that all potential legal issues are adequately addressed and that the agreement is enforceable.”
Tip 7:
Have it prepare a first draft email to the client to accompany your document:
“Draft a cover email I can send to my client highlighting any further information required and booking them in for a follow up call”
ChatGPT
Certainly, here is a draft of a cover email you can use to communicate with your client:
Subject: Follow-Up Required: Intellectual Property Rights Agreement
Dear [Client's Name],
I hope this message finds you well.
Following our recent discussions regarding the intellectual property rights agreement, I have conducted a thorough review and have some recommendations to ensure the agreement aligns perfectly with your company's objectives and legal requirements.
To proceed effectively, I would require some additional information on the following:
Any existing definitions and precedents you may have regarding intellectual property within your company.
Detailed descriptions of the job role and scope of the work for which the intellectual property would be created.
Clarification on the use of company resources and any collaborative efforts with third parties.
An outline of your expectations concerning inventions made by the employee outside of work hours but related to your company's field.
I believe a follow-up call would be beneficial to discuss these points in detail and to answer any questions you may have. This would also allow us to finalize the agreement draft, ensuring it is comprehensive and tailored to your specific needs.
Could you please let me know your availability for a call next week? I am currently open on [insert day] and [insert day], but I am willing to accommodate your schedule as needed.
Thank you for your attention to this matter. I am looking forward to our continued collaboration.
Warm regards,
[Your Name] [Your Position] [Your Contact Information]
Please ensure to personalize the email with the client’s name, your available days for the follow-up call, and your contact information before sending it.”
Tip 8:
Use it to reflect on the tone you use in emails:
“How would you describe the tone of this email?”
“ChatGPT
The tone of the email draft provided is professional, courteous, and collaborative. It is professional in its structured approach to requesting further information and proposing a follow-up call, which demonstrates due diligence and respect for the formal business relationship. The courteousness is conveyed through polite language and a considerate inquiry about the client's availability, showing an understanding of the client's time constraints. Lastly, the collaborative tone is emphasized by the language suggesting partnership and shared objectives, as well as an openness to accommodating the client’s schedule, signaling a willingness to work together towards a mutual goal.”
Tip 9:
Ask for alternate options if you client has specific needs:
“Can you amend this email so that its easier to read for a client who speaks English as a second language”
ChatGPT
Certainly! Here's a simplified version of the email:
Subject: Your Input Needed: Work Agreement Details
Dear [Client's Name],
I hope you are doing well.
We talked before about the work agreement, especially about the rules for new ideas or work that you or your employees create. I have looked over our notes and I think there are some things we should talk about more.
Please tell me more about:
Rules you already have for new ideas created at your company.
The work the employee will do and what you expect from them.
If they will work with other companies and how they will use your company's things like computers or information.
Ideas the employee might create when they are not working.
It would be good to talk on the phone. We can go over these points and make sure everything is clear. When can you talk next week? I can on [insert day] or [insert day], but I can change my plans to fit your schedule.
Thank you for looking at this. I am here to help you with this.
Best,
[Your Name] [Your Position] [Your Contact Information]
When simplifying the language, I've made sure to:
Use simpler words and shorter sentences.
Break down complex ideas into more understandable parts.
Avoid idioms and phrases that might be difficult for non-native speakers to understand.
Clearly list the additional information required in a numbered format for easy reference.
Keep a polite and professional tone while making the content more accessible.
Tip 10:
Stay up to date with regulatory guidance and other industry advice. For Melbourne-based lawyers, check out the LPLC's current guidance here.
This article was written by Pippin Barry (BA; JD 2012 UoM), an Australian Legal Practitioner. If you’re interested to learn more about using AI in legal practice get in touch with us here.
