A solicitor in Victoria was recently referred for disciplinary action when he used Generative Artificial Intelligence (‘Gen AI’) technology to draft an outline of submissions and list of cases. Unfortunately, some of the authorities and citations were fictitious and the practitioner did not check their accuracy. This was discovered when the presiding judge’s staff attempted to research the authorities.
The advancement of Gen AI technology has, and will continue to, transform the legal profession and the delivery of legal services by improving the efficiency of tasks such as legal drafting and research. However, it is imperative that this be done in accordance with a legal practitioner’s overriding duty to the court and processes that are implemented to help overcome the various challenges and drawbacks associated with using this technology.
On 21 November 2024, the Chief Justice of New South Wales, His Honour, Justice Bell issued a Practice Note regarding the use of Gen AI in the legal sector. The Practice Note was revised on 28 January 2025 following consultation with the profession. The Practice Notice and associated amendments to the Uniform Civil Procedure Rules were effective from 3 February 2025.
What is Gen AI?
Gen AI is a form of artificial intelligence that relies on data and patterns to generate new content. It is capable of assisting legal practitioners with various tasks such as drafting documents, summarising information and performing legal research. The Practice Note sets out important guidelines on the circumstances in which the use of Gen AI is prohibited and when it can be used, and identifies a number of the risks and shortfalls that arise when using the technology.
Although Gen AI is a powerful and generally reliable tool when used appropriately, and despite significant advancements in recent years, risks and drawbacks remain. The Chief Justice highlighted some of those risks, which include:
- Gen AI is prone to ‘hallucinations’, being the generation of inaccurate or fictitious content which purports to be plausible or reasonable. This may arise in situations where the Gen AI program has relied on incorrect, incomplete or false data in generating its content. The Chief Justice pointed out that this underscores the need for legal practitioners to verify any references to legal authorities made by Gen AI.
- the lack of adequate safeguards to maintain confidentiality, privacy or legal professional privilege when information is entered into Gen AI programs. For instance, confidential information may inadvertently be released when data entered into Gen AI programs is used to train the large language model.
What are the core points of the Practice Note?
Material prohibited from being entered into any Gen AI program
Certain material is strictly prohibited from being entered into any Gen AI program including, but not limited to:
- information subject to non-publication or suppression orders
- material produced on subpoena, or
- material that is the subject of a statutory prohibition upon publication.
Because the following documents should reflect a person’s own knowledge rather than AI-generated content, Gen AI must not be used in generating the content of:
- affidavits
- witness statements, and
- character references.
Requirements around written submissions and summaries of argument
Gen AI may be used for the preparation of written submissions or summaries of argument. The author is required to verify the existence, accuracy and relevance of any references made to:
- citations
- legal/academic authority
- case law
- legislation, and
- evidence.
Expert reports
1. Expert reports prepared between 21 November 2024 and 3 February 2025
Expert reports prepared between 21 November 2024 and 3 February 2025 must identify which parts (if any) have been prepared with the assistance of Gen AI.
2. Expert reports prepared from 3 February 2025
From 3 February 2025, Gen AI cannot be used to prepare expert reports unless prior leave has been obtained from the Court. Any leave application must identify:
- the proposed use of the technology
- the specific Gen AI program proposed to be used
- the benefit derived from using Gen AI, and
- the documents to be submitted to the program in order to generate the expert report.
In the event that leave is granted, expert witnesses are, among other requirements, obliged to disclose the parts in the report that were prepared using Gen AI.
Legal practitioners must draw this requirement to the attention of experts upon instructing them.
Conclusion
Legal practitioners must remain aware of the various considerations when using Gen AI and ensure they adhere to relevant guidelines and ethical obligations.
Meridian Lawyers is investing in Gen AI as part of our focus on exploring innovative systems and processes to enhance the service delivery and service experience of our clients. However, we are aware of the limitations on its use and the inherent risks associated with the technology, and recognise the need to implement it with caution and consistent with a legal practitioner’s duty to the court.
Due to the rapid evolution of Gen AI technology, the Chief Justice has stated that the Practice Note will be subject to periodic review. We will keep you informed of any notable developments.
Further information
This article was written by Principal Matthew McDonald and Solicitor Adrian Leeds. For further information or advice on any related matters please contact Matthew.
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