Why solicitor-to-counsel AI use matters
Instructions often bring together a solicitor’s analysis, chronology, document summaries and selected source material. If AI has contributed to preparing any of that material, counsel may need to understand whether its use affects what has been provided.
The BSB’s 2026 guidance addresses that point directly. Section 6 says barristers should be aware that instructing solicitors may use AI and should consider the effect that use may have on the instructions or materials they receive, including their accuracy or confidentiality. It is guidance about barristers’ professional responsibilities when others use AI—not a new procedural code for solicitor-to-counsel instructions.
The guidance is addressed to barristers
The BSB Handbook sets standards for people it regulates. Its AI guidance explains how those existing standards apply to technology use. The current Handbook also says that BSB-regulated persons must have regard to relevant BSB guidance. It adds that departure from guidance is not, by itself, proof of a breach, although a barrister may need to show how the underlying obligation was met.
That distinction matters. Section 6 does not create a direct BSB obligation on solicitors. It tells barristers to be alert to AI use by people they work with and to consider whether it affects their own professional work.
What section 6 says about instructing solicitors
Section 6 identifies three different situations: clients may use AI to seek legal information; instructing solicitors may use AI when preparing instructions or materials; and opposing parties, including litigants in person, may use AI in presenting arguments.
For instructing solicitors, the guidance says barristers should consider whether AI use may affect the accuracy or confidentiality of the instructions or materials supplied. It does not say that solicitors must routinely disclose every use of AI to counsel. Nor does it require barristers to audit every set of instructions for AI involvement.
The question is whether there is a reason, in the circumstances of the particular matter, to consider an effect on the work counsel has received.
Accuracy: assess what arrives
The BSB guidance makes clear that a barrister remains responsible for their own work when using AI. Section 5 says AI outputs should be reviewed for accuracy and appropriateness before being included in work, and that references or conclusions should be checked against independent sources.
Section 6 does not prescribe a verification process for solicitor-prepared instructions. A practical implication, however, is that if AI has materially shaped an important summary or analysis, counsel may need to consider whether the underlying source material should be checked before relying on it. A summary is not a substitute for the documents it summarises. This is a practical reading of the guidance, not a checklist imposed by the BSB.
The appropriate response will depend on the work and the information available. It may be enough to clarify a point with the instructing solicitor; in another situation, counsel may need to inspect the relevant source documents or verify a cited authority independently.
Confidentiality: consider how information was handled
Section 6 also identifies confidentiality as a possible effect of another person’s AI use. Section 5 separately reminds barristers that their own use of AI engages duties concerning client confidentiality and personal-data processing.
The practical question is whether the tool and the way it was used create a concern about information supplied to it. The guidance does not say that every use of AI compromises confidentiality or privilege. Nor does the fact that AI was used, by itself, establish that information was exposed. The circumstances and the tool’s relevant settings and terms may matter.
Three different uses of AI
The guidance is easier to apply when the use is identified:
- AI used by counsel: Section 5 addresses counsel’s own responsibilities, including accuracy, appropriateness, confidentiality and professional accountability.
- AI used by an instructing solicitor: Section 6 asks counsel to consider whether that use may affect the accuracy or confidentiality of instructions or materials received.
- AI used by a client or opposing party: Section 6 asks barristers to be aware of possible use by those people too. It discusses the need to consider the effect on the client or the material, rather than treating every such use as a reason for a prescribed response.
These are distinct situations. The guidance should not be read as transferring a solicitor’s or client’s responsibilities to counsel, or as relieving counsel of responsibility for counsel’s own work.
What counsel is not required to do
Section 6 does not prescribe a universal AI declaration in solicitor instructions. It does not say that barristers must ask every instructing solicitor whether AI was used, investigate every instruction for AI involvement, or reject material simply because AI contributed to it.
That does not remove other obligations that may arise in a particular matter—for example, from court requirements, confidentiality considerations or the nature of the work. It means only that section 6 does not itself prescribe those blanket steps.
Barristers remain responsible for their own work
Where barristers use AI themselves, the BSB guidance says they remain responsible for their professional work and should review AI outputs for accuracy and appropriateness. It also calls for independent verification of references or conclusions before relying on them.
That responsibility remains with counsel even where AI contributed to material received from a solicitor. The guidance does not make the solicitor’s use of AI a substitute for counsel’s own professional judgment.
Transparency where AI materially affects the service
The BSB says barristers must be transparent with clients about AI use where it materially affects the nature or scope of the legal service. It also encourages consideration of whether it is in the client’s or court’s interests to disclose AI use proactively. The guidance recognises that disclosure may not be necessary for de minimis use, while requiring an honest and transparent response to relevant client, court or BSB enquiries.
This is the BSB’s guidance for barristers. It does not create a general requirement for solicitors to report every AI-assisted task to counsel. Whether transparency is appropriate in a particular instruction depends on the use and its effect.
Practical questions for solicitor and counsel teams
The following questions are a practical interpretation of the BSB guidance, not a BSB-prescribed checklist:
- Has AI played a material role in preparing these instructions or materials?
- Is there a specific reason to question the accuracy of a summary, analysis or reference?
- Could the use of the tool have put confidential or privileged information at risk?
- Would checking the underlying source material help resolve a material uncertainty?
- Does counsel’s own subsequent use of AI engage separate professional responsibilities?
- Does AI use materially affect the nature or scope of the service in a way that raises a transparency question?
The point is not to add routine declarations or investigations to every instruction. It is to identify a concrete concern and consider it in context.
What the guidance does—and does not—establish
The BSB’s 2026 guidance makes existing professional responsibilities more explicit in the context of AI. For barristers, it highlights the need to consider how AI use by others may affect the accuracy or confidentiality of instructions and materials. It also restates that barristers remain responsible for their own professional work.
It does not impose a general AI-disclosure rule on solicitors, require counsel to audit every instruction, or establish that AI use necessarily makes material inaccurate or confidential information compromised.
Seeing source support in a matter workflow
LegalRAG Pro is being developed around matter-centred work in which source material can be identified and analysis inspected against that material. This does not determine whether an instruction is accurate, establish confidentiality compliance, or satisfy a barrister’s professional duties.
For an example of source-linked analysis in a fictional synthetic matter, see the Eleanor Morgan walkthrough. It is a product workflow example, not evidence of compliance with BSB guidance.