A South Australian solicitor and two Victoria-based counsel have been referred to their respective legal regulators for relying on material that was prepared by artificial intelligence.
The Federal Circuit and Family Court of Australia (FCFCOA) has referred a solicitor to the South Australian Legal Profession Conduct Commissioner and two counsel to the Victorian Legal Services Board for submitting material generated by artificial intelligence (AI).
The solicitor, known only as Ms G, was also ordered to pay $10,000 to the respondents as costs thrown away by the generated AI errors.
Justices Murray Aldridge, Catherine Carew and Juliet Behrens said it was in the public interest that regulators “are aware of examples of difficulties which have arisen from the use of AI”.
Referring to guidelines of the FCFCOA and other courts, the bench said that if AI is used to identify authorities for the purposes of any court document, “then it is incumbent on the author and those accepting responsibility for the document to verify that those authorities are both accurate and relevant to the proceedings”.
“Each of the relevant legal practitioners conceded that they had not done so in respect of the original summary of argument and list of authorities,” Justices Aldridge, Carew and Behrens said.
The two counsel, Mr AX and Mr AY, confirmed they were involved in the preparation of the documents and accepted responsibility, but said they had not used the AI tools themselves.
Ms G said it was her paralegal who used it, telling the court that she has since “terminated the services of her paralegal”.
“My paralegal told me she used AI to alphabetise the cases in the list of authorities and place them under headings of each ground of appeal,” Ms G said in written submissions.
The FCFCOA bench said Ms G did not identify which AI program was used and did not set out what, if any, training, supervision or guidance the paralegal had been given in relation to the use of AI.
“To what extent and in what way [AI] was used remains opaque, notwithstanding the written submissions of the solicitor responsible,” Justices Aldridge, Carew and Behrens said.
The case: Mertz & Mertz (No 3) FedCFamC1A 222.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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