Published on the 16/04/2025 | Written by Heather Wright

You can’t delegate your fiduciary responsibilities to AI…

Those AI notetakers you’re using to automate minute taking, generate summaries, track action items and provide meeting insights, might be a great time saver and efficiency enhancer, but a lawyer is warning of potential legal pitfalls, for boards and companies alike – and it’s an area becoming more complicated with notetakers now ‘attending’ meetings in place of humans.

Michelle Dunlop, a senior associate with Simpson Grierson and former in-house legal counsel for AI tech company DeepMind, says the benefits of AI notetakers sound particularly good for busy directors and executives but there are some legal risks involved.

“The AI notetaker can’t fulfil that role.”

She’s urging companies to consider AI notetakers as part of their overall AI governance strategy.

“As part of a good AI governance program you need to cover off the use of AI notetakers. It’s not necessarily something to consider prioritising a policy for in isolation, but as you think about how your organisation is deploying and using AI this should naturally form a part of that,” she says.

The attendance of AI notetakers in place of humans in some meetings is bringing with it further complications.

She cites the example of a recent industry meeting where no less than three attendees had sent virtual notetakers in their place, and says if companies are seeing an influx of bots to being sent to meeting in place of humans, they might want to address that issue head on, with specific policies. (For directors, Dunlop notes the law requires them to be people and an AI agent doesn’t count toward the minimum numbers required to reach a quorum.)

While the issues with AI notetakers are more pertinent for the board and executive level meetings because of the strategic and confidential nature of what might get discussed in those meetings, Dunlop says their reach spreads beyond the boardroom and could encompass equally sensitive areas such as being used in HR interviews, giving rise to the same concerns.

As to those concerns, she says accuracy, data  security and privacy and confidentiality and privilege are key for businesses using the tools.

While the technology is improving, there’s still the potential for hallucinations, or extrapolating beyond what is said, and they may not understand nuanced conversations or technical language and struggle with accents or colloquialisms leading to the AI producing an inaccurate transcript of the meeting.

“For directors who might be relying on those transcripts, that could put them at risk of breaching their statutory duties of due diligence and care if they don’t apply their own independent judgement.”

Relying on a transcript from a meeting they’ve been absent from to inform decision making, without applying a level of diligence, and independent judgement, over the transcript could lead to issues she says.

“Directors have statutory duties that are fiduciary, so for example to make sure they’re taking decisions in the best interest of the company. The AI notetaker can’t fulfil that role. They can’t delegate that role exclusively to an AI.”

On the data security side, the tools record data verbatim, and some of that might be commercially sensitive. Depending on system used, data could be transferred and stored on systems in other countries with no easy way for a company to access or delete it, and on systems that could be vulnerable to cyberattacks. Some vendors also reserve the right to use the information collected by the tool for training their models, opening the door for a company’s confidential information to be inadvertently exposed or leaked.

That verbatim recording of data can also include personal news or information about participants raising questions about consent and privacy issues, particularly when participants aren’t aware they’re being recorded.

Typically the note takers send out transcripts after a meeting, raising the prospect of commercially sensitive information being disseminated to wider than intended audience, risking confidentiality or privilege issues.

Dunlop recommends companies have a policy around the use of AI notetakers.

“The issues are not necessarily reserved for the board and executive team level meetings, so perhaps thinking about what types of meetings it would be appropriate for AI notetakers to attend and which may not.”

A policy might include that an AI notetaker can’t be sent in place of actual participants or that notetakers are switched off for more sensitive parts of meetings, or banned outright for more sensitive meetings.

Security and data privacy requirements should also be front of mind – what is the tool’s privacy policy in terms of where data is stored, how is it handled, does the vendor retain rights to use the data for further training.

Selecting tools, ideally with some degree of control over functionality – such as opting out of sending data for further training – is recommended.

She says having human oversight and promptly reviewing and correcting AI generated outputs, confirming official meeting records and deleting transcripts when they are no longer needed – and the process for doing so – is also important.

“In a board context you generally have an agreed set of minutes that are accepted as a true and accurate statement of the meeting at the subsequent board meeting. That verification process doesn’t necessarily happen with other less formal meetings.”

There’s a risk of having multiple AI transcripts generated from one meeting, leading to multiple versions of minutes that may not be consistent with each other.

“That might translate to a legal risk if those records subsequently become discoverable as part of a legal process. You could imagine complications arising from an evidentiary perspective if the records haven’t been vetted or verified or if they contain discrepancies.”

The human oversight could also include having hosts admit each participant in virtual meetings to avoid an influx of bots popping into meetings.

“These tools are potentially great – great time saving, great efficiencies – but use with caution.”