A Victorian lawyer has become the first in Australia to face professional sanctions for using artificial intelligence in a court case, being stripped of his ability to practise as a principal lawyer after AI generated false citations that he had failed to verify.
Guardian Australia reported in October last year that in a 19 July 2024 hearing, the anonymous solicitor representing a husband in a dispute between a married couple provided the court with a list of prior cases that had been requested by Justice Amanda Humphreys in relation to an enforcement application in the case.
When Humphreys returned to her chambers, she said in a ruling that neither herself nor her associates were able to identify the cases in the list. When the matter returned to court the lawyer confirmed that the list had been prepared using legal software that utilised AI.
He acknowledged he did not verify the accuracy of the information before submitting it to the court.
The lawyer offered an “unconditional apology” to the court and said he would “take the lessons learned to heart” and asked not to be referred for investigation.
He said he did not fully understand how the software worked, and acknowledged the need to verify AI-assisted research for accuracy. He made a payment to the solicitors for the other party for the costs of the thrown away hearing.
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Humphreys said she accepted the apology and acknowledged the stress it caused meant it was unlikely to be repeated, but a referral for investigation was important given it was in the public interest for the Victorian Legal Services Board and Commissioner to examine professional conduct issues, given the increasing use of AI tools in law.
The lawyer was referred to the Victorian Legal Services Board for investigation, in what was one of the first reported cases in Australia of a lawyer being caught out using AI in court that generated false citations.
The Victorian Legal Services Board confirmed on Tuesday that the lawyer had his practising certificate varied on 19 August as a result of the investigation, meaning he was no longer entitled to practise as a principal lawyer, not authorised to handle trust money, would no longer operate his own law practice, and would only practise as an employee solicitor.
The lawyer will undertake supervised legal practice for a period of two years, with the lawyer and his supervisor reporting to the board on a quarterly basis in that time.
“The board’s regulatory action in this matter demonstrates our commitment to ensuring legal practitioners who choose to use AI in their legal practice do so in a responsible way that is consistent with their obligations,” a spokesperson said.
Since this case, there have been more than 20 other reported cases in Australian courts where lawyers or self-represented litigants have been found to have used artificial intelligence in the preparation of court documents that led to those documents containing fake citations.
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Lawyers in Western Australia and New South Wales have also been referred to their own state regulatory bodies over the practice.
There has also been at least one case in Australia where someone claimed a document had been prepared using ChatGPT, only for the court to determine the document in question was created before ChatGPT was available to the public.
Courts and law groups recognise that AI will play a role in legal processes, but continue to warn that it does not diminish lawyers’ professional judgment.
“Where these tools are utilised by lawyers, this must be done with extreme care,” the Law Council of Australia’s president, Juliana Warner, told Guardian Australia last month. “Lawyers must always keep front of mind their professional and ethical obligations to the court and to their clients.”
Warner said courts were regarding cases where AI had generated fake citations as a “serious concern” but added that given the widespread use of generative AI, a broadly framed prohibition on its use in legal proceedings would be “neither practical nor proportionate, and risks hindering innovation and access to justice”.
