The Minister for Immigration and Multicultural Affairs, who was the first respondent in the matter, alerted the Court about the non-existence of the citations and alleged quotes.
Upon realising his mistake, the lawyer emailed the Court, without copying in the Minister or seeking the Minister’s consent to send the email, an amended submission without references to the non-existent cases and quotes.
The Court “expressed its concern” over the lawyer’s conduct and his failure to verify the accuracy of documents filed with the Court. It noted that the Court and the Judge’s Associates spent “a considerable amount [of] time … checking the citations and attempting to find the purported authorities.”
The Court ordered the parties to file submissions as to whether the lawyer should be referred to the Office of the NSW Legal Services Commissioner (OLSC).
The lawyer admitted that “due to time constraints and his health issues” he used artificial intelligence (AI), in particular ChatGPT, to prepare a summary of cases. The lawyer explained that he decided to use AI, “which had been promoted by reputable legal services … as being of assistance in legal practices.”
The lawyer stated that the summary “read well,” so he used the authorities and references in his submissions “without checking the details.”
The Minister submitted that the lawyer “failed to exercise adequate care in allowing submissions which contained false citations and false quotes to be filed.” The Minister also submitted that “misuse of artificial intelligence in legal proceedings was a matter of current public interest” and it would “be a matter of increasing concern in future… .”
The Minister further submitted that “there was a public interest in ensuring the OLSC is aware of the misuse of AI in cases as they arise” and given the likelihood of something like this happening again, it should be “nipped in the bud.”
The Court considered the actions of the lawyer and whether his conduct constituted ‘unsatisfactory professional conduct’ or ‘professional misconduct’ within the Legal Profession Uniform Law (NSW).
The Court accepted the lawyer “genuinely regrets his conduct” and has “undertaken to further his knowledge and understanding of the risks of using generative AI tools.”
However, the Court found that the lawyer’s conduct in using fictional cases and quotes fell “short of the standard of competence and diligence that the applicant … was entitled to expect from his legal representative” and it fell short of a lawyer’s duty to the Court.
The Court recognised the “strong public interest” in referring this matter to the OLSC “given the increased use of generative AI tools by legal practitioners” and “[t]he use of generative AI in legal proceedings is a live and evolving issue.”
The Chief Justice of the Supreme Court of NSW issued Practice Note SC Gen 23 regarding the use of Generative Artificial Intelligence on 21 November 2024. It was replaced by the updated Practice Note issued on 28 January this year. It reminds legal practitioners and unrepresented parties of the “limits, risks and shortcomings” of Gen AI programs including the risk of hallucinations, misinformation, and the lack of adequate safeguards.
The Practice Note states that where Gen AI has been used to prepare written submissions or summaries, the “author must verify in the body of the submissions … that all citations, legal and academic authority and case law and legislative references” exist, are correct and are pertinent or relevant to the proceedings.
The Practice Note commences on 3 February 2025 and will apply to all proceedings from today.
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