A NSW practitioner who filed submissions containing non-existent cases and quotes generated by AI, has been referred to that state’s Office of the Legal Services Commissioner (OLSC).
In 2020, “the ALR” (Applicant’s Legal Representative) had sought a review of a decision made by the then Administrative Appeals Tribunal (AAT). In October last year, he filed an amended application and submissions which contained the fictitious ChatGPT-generated citations to cases and quotes from the AAT’s decision.
In her Federal Circuit and Family Court of Australia (Division 2) judgment handed down in Sydney on January 31, Judge Skaros considered it was in the public interest to refer the ALR’s conduct to the OLSC.
The judgment states that eight days after filing the submissions, the ALR emailed the court – without copying in the Minister for Immigration and Multicultural Affairs or seeking their permission to email the court – attaching an amended submission which had removed the purported citations and quotes.
The final hearing scheduled for 25 November had to be vacated and a directions hearing was instead listed to raise with the parties the court’s concerns about the ALR’s conduct and to create a timetable for the review proceedings.
At this hearing, the court asked whether the ALR’s written submissions had been generated using AI. The ALR stated that he had used AI to identify Australian cases, but it provided him with non-existent case law.
“The court expressed its concern about the ALR’s conduct and his failure to check the accuracy of what had been filed with the court, noting that a considerable amount time had been spent by the court and my associates checking the citations and attempting to find the purported authorities,” Judge Skaros said.
The court ordered the ALR to address how the submissions were generated, along with an invitation to file and serve written submissions about why he should not be referred to the OLSC.
Judge Skaros said the conduct of the ALR fell short short of the standard of competence and diligence expected from a practitioner, and fell short of a practitioner’s duty to the court.
She said the ALR, who was admitted as a solicitor in 1997, had expressed his sincere apology to the court, explaining that his conduct was the product of inadvertence, had not occurred before and would not occur again.
The ALR had used AI due to time constraints and health issues, and had said that he emailed amended submissions without consent due to time constraints and possible misinterpretation of advice from the court.
“The court accepts that the ALR did not deliberately intend to exclude his opponent from communication with the court and that the oversight likely arose from his lack of familiarity with litigation procedure and the Conduct Rules,” Judge Skaros said.
“Counsel submitted that the ALR was profoundly embarrassed by the conduct and had taken steps to improve his knowledge of AI.”
The Minister submitted that the misuse of AI in legal proceedings was a matter of current public interest.
“It was submitted that such misuse would likely be a matter of increasing concern in future, and there was a public interest in ensuring the OLSC is aware of the misuse of AI in cases as they arise,” Judge Skaros said.
She said there was a strong public interest in referring the conduct given the increased use of generative AI tools by legal practitioners.
“The use of generative AI in legal proceedings is a live and evolving issue,” she said.
“While the Supreme Court of NSW has issued guidelines around the use of generative AI, other courts, including this court, are yet to develop their guidelines.
“The court agrees with the Minister that the misuse of generative AI is likely to be of increasing concern and that there is a public interest in the OLSC being made aware of such conduct as it arises.”
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