In Dayal [2024] FedCFamC2F 1166 Humphreys J considered an solicitor who used AI in generating a list and summary of authorities that, oops but unsurprising given AI hallucinations, were later acknowledged by the solicitor not to exist. The accuracy of the document was not verified by the solicitor.
The judgment states
This matter relates to my decision to refer the conduct of a solicitor to the Office of the Victorian Legal Services Board and Commissioner. The solicitor in question tendered to the court a list and summary of legal authorities that do not exist. The solicitor has informed the court the list and summary were prepared using an artificial intelligence (“AI”) tool incorporated in the legal practice management software he subscribes to. The solicitor acknowledges he did not verify the accuracy of the information generated by the research tool before submitting it to the court.
The solicitor concerned is Mr Dayal, a Victorian solicitor and principal of the firm C Law Firm. I will refer to him as “the solicitor” and his name and the name of his firm will be anonymised when my reasons are published, noting the purpose of my decision is not punitive.
For the background to the matter, I refer to my earlier ex tempore reasons delivered on 19 July 2024 in the enforcement proceeding in which the solicitor appeared as agent for another firm of solicitors. Those reasons explain the circumstances in which the list and summary of authorities was tendered by the solicitor, how the content of the list and summary of authorities was identified to be inaccurate and the solicitor’s acknowledgement that the list and summary of authorities was prepared with the assistance of AI....
In his written submissions the solicitor acknowledged: (a) Handing up to the court on 19 July 2024 a document that purported to contain summaries of relevant authorities and included what looked like medium neutral citations identifying those decisions; (b) Using legal software, and in particular an AI driven research tool module, to generate the list of authorities and summaries; (c) Neither he nor another legal practitioner had reviewed the output generated by the research tool to ensure the accuracy of the list of authorities and case summaries; and (d) The authorities identified in the list and summary tendered to the court do not exist.
The solicitor has offered an unconditional apology to the court for tendering the inaccurate list and summary of authorities. He has provided an assurance that he will “take the lessons learned to heart and will not commit any such further breach of professional standards in the future.” He asks that I not make a referral to the Victorian Legal Services Board.
The submissions made by the solicitor include that he did not intentionally mislead the court. In support of that submission, the solicitor provided information as to the circumstances which lead to him relying on the AI tool within the practice management software he uses and how he generated the list of authorities and case summaries. He explained that he did not fully understand how the research tool worked. He acknowledged the need to verify AI assisted research, or indeed any source of legal research relied upon, for accuracy and integrity.
The solicitor outlined the steps he has taken to address and mitigate the impact of his conduct, including voluntarily making a payment to the solicitors for the other party in the enforcement proceeding, in settlement of costs thrown away for the hearing on 19 July 2024. He says he has informed the Legal Practitioners Liability Committee (“LPLC”) of what occurred and that the LPLC is providing him with ongoing professional support. The solicitor has also provided submissions in relation to his personal and professional circumstances and the stress and cost caused to him as a result of his conduct on 19 July 2024. He offered to provide an affidavit to verify the information provided in his submissions.
Use of AI in litigation
The use of technology is an integral part of efficient modern legal practice. At the frontier of technological advances in legal practice and the conduct of litigation is the use of AI. Whilst the use of AI tools offer opportunities for legal practitioners, it also comes with significant risks.
Relevantly to this case, the USA District Court case of Mata v Avianca Inc drew worldwide attention to the risk of relying on generative AI for research purposes in litigation without independent verification. In that case, attorneys of a firm who relied on generative AI to prepare legal submissions which were filed referring to non-existent cases, and initially stood by the submissions when called into question by the court, were found to have abandoned their professional responsibilities and sanctioned. The USA District Court outlined the potential harms flowing from the filing of bogus submissions in its judgment as follows:
Many harms flow from the submission of fake opinions. The opposing party wastes time and money in exposing the deception. The Court’s time is taken from other important endeavors. The client may be deprived of arguments based on authentic judicial precedents. There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the American judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity.
The potential harms identified by the USA District Court apply to the reliance on non-existent authorities in this court.
Whilst this court has not yet done so, a number of courts in Australia and overseas have formulated guidelines for the responsible use of generative AI by litigants and lawyers, to assist those conducting litigation before them.
Guidelines issued by each of the Supreme Cout of Victoria and County Court of Victoria for example,emphasise: (a) Parties and practitioners who are using AI tools in the course of litigation should ensure they have an understanding of the manner in which those tools work, as well as their limitations; (b) The use of AI programs must not indirectly mislead another participant in the litigation process (including the court) as to the nature of any work undertaken or the content produced by that program. Ordinarily parties and their practitioners should disclose to each other the assistance provided by AI programs to the legal task undertaken; and (c) The use of AI to assist in the completion of legal tasks must be subject to the obligations of legal practitioners in the conduct of litigation, including the obligation of candour to the court.
Importantly in the context of this matter, the guidelines issued by the Supreme Court and County Court of Victoria explain that generative AI and large language models create output that is not the product of reasoning and nor are they a legal research tool. Generative AI does not relieve the responsible legal practitioner of the need to exercise judgment and professional skill in reviewing the final product to be provided to the court.
Duties of legal practitioners
Whilst not issued by this court or applying directly to practitioners conducting litigation in this court, I mention these particular guidelines because they reflect the responsible use of AI by practitioners in litigation by reference to the duties of legal practitioners generally, including the duty not to mislead the court or another participant in the litigation process and the duty of candour to the court. In that sense, the guidance provided by these particular guidelines is applicable to practitioners conducting litigation in this court.
Relevantly to the conduct of the solicitor before me, the duties of Victorian solicitors include: (a) The paramount duty to the court and to the administration of justice, which includes a specific duty not to deceive or knowingly or recklessly mislead the court; (b) Other fundamental ethical duties, including to deliver legal services competently and diligently; and (c) To not engage in conduct which is likely to diminish public confidence in the administration of justice or bring the legal profession into disrepute.
The solicitor has acknowledged a breach of the professional standards expected of a solicitor in this court, by his conduct in tendering a list and summary of authorities that do not exist, generated without disclosing the source of the information presented to the court and without verifying its accuracy.
Humpreys J stated that 'it is in the public interest for the Victorian Legal Services Board and Commissioner to be aware of the professional conduct issues arising in this matter, given the increasing use of AI tools by legal practitioners in litigation more generally'.
In the earlier judgment - Handa & Mallick [2024] FedCFamC2F 957 - Humphreys J stated
The matter was stood down this morning for the purposes of the parties’ legal representatives discussing the issues identified earlier this morning in relation to the enforcement application and to see if there was any prospect of a negotiated resolution. I asked if either party’s representative was in a position to provide me with any authorities that they sought to rely upon, for me to read while the matter was stood down.
Mr B tendered a single-page list of authorities. Upon returning to chambers neither I nor my associates were able to locate the cases identified in that list. The case citations provided for each of the four listed cases correspond with cases reported by names. My associates asked Mr B to provide copies of the authorities referred to in the list, and he did not do so.
When the matter returned to court, I asked Mr B if the list of authorities had been provided using artificial intelligence. He informed me the list had been prepared from LEAP, being a legal software package, as I understand it, used for legal practice management and other purposes. I asked if LEAP relies on artificial intelligence. He indicated that it does, answering “there is an artificial intelligence for LEAP.” I foreshadowed making procedural orders later in the day, requiring Mr B to provide an explanation as to what had occurred. Mr B clarified this afternoon that he prepared the list of authorities and not Ms Aus Lawyers.
I informed the parties and their legal representatives this morning that as a concern had arisen in relation to the veracity of information provided in the list of authorities, a concern had in turn been raised in relation to the competency and ethics of Mr B. In light of what transpired, I asked that the husband be assisted to seek advice from a duty lawyer in relation to Mr B continuing to assist him today. The husband has been present in court throughout these discussions. He informed the court via Mr B and also directly in court after seeing the duty lawyer that he is comfortable for Mr B to continue assisting him today.
Unfortunately, the parties have been unable to reach an agreement in relation to the enforcement application. That may be because other matters have arisen during the course of the day taking their attention and time away from their negotiations. I encourage them to continue those negotiations over the coming days, pending the adjourned hearing next Wednesday.
I have foreshadowed with Mr B and counsel for the wife, making an order providing Mr B an opportunity to respond to the court's proposal to refer his conduct in tendering the apparently inaccurate list of authorities today, to the Legal Services Board and Commissioner for investigation. Beyond that, I will not be making an assessment or a determination in relation to that conduct. That will be a matter for the legal professional body if a referral is made. The purpose of the order I make is for Mr B to be afforded procedural fairness in relation to my proposal to make that referral. I will provide him with one month to do that. Mr B has been informed of the orders I intend to make this afternoon and has not wished to make submissions against that course.
Counsel for the wife has foreshadowed making an application for costs in relation to the adjournment of today's hearing. He anticipates doing so at the conclusion of the enforcement hearing rather than separately today. I have indicated to the parties and to their legal representatives today, that if any application is made for costs to be paid personally by Mr B (as agent appearing today for the husband), he is to be put on notice of that application and have an opportunity to respond by way of procedural fairness. I will ensure that any further orders made in relation to the foreshadowed cost application provide for that to occur.
