Prophecies of AI’s potential for legal havoc are starting to ring true – as an unnamed migration lawyer faces the Bureau de Spank for using ChatGPT to plump up submissions – just at the moment the NSW Chief Justice revisits the State’s AI guidance.
Judge Rania Skaros of the Circuit Court referred the lawyer, whose identity has been thoughtfully suppressed, to the professional standards body after he cited a string of cases which turned out to be non-existent AI “hallucinations”.
The lawyer acted unsuccessfully against the Immigration Minister and the erstwhile AAT. His client, a Tongan national and unlawful non-citizen, was refused a partner visa because he did not hold a substantive visa at the time of his application, and because the Tribunal did not find compelling reasons to waive that requirement under the Migration Regulations.
The applicant’s judicial review case alleged that there was a misapplication of statutory criteria and a lack of procedural fairness, but neither made the grade, and Judge Skaros refused to set aside the Tribunal’s decision, awarding costs against the applicant and ordering the solicitor to stump up $2,980 for the Minister.
The Minister submitted that 17 cases listed in the applicant’s submissions were fabulated, and HH – after her associates spent “a considerable amount of time … checking the citations and attempting to find the purported authorities” – ordered that the lawyer serve written submissions as to why he should not be referred to the Stipes.
The lawyer grovelled to the court, admitting to his use of ChatGPT while blaming “time constraints and health issues”. He cited his 27 years as a practitioner, advancing age and an upcoming spinal surgery as reasons militating against a formal complaint.
The Minister’s mouthpiece successfully argued that the lawyer’s actions were likely to constitute unsatisfactory professional conduct and that there is no time to waste in making an example of practitioners who misuse AI.
HH opined that the false cases may also breach the lawyerly duty not to deceive or mislead the court under rule 19.1 of the Conduct Rules, and ordered he be referred to the Bureau.
Meanwhile, NSW Chief Justice Andrew (Taco) Bell has outlined a “hard and conservative” resistance to AI use in court – telling the ABC that “the task of judging in our society is a human one”.
A practice note released by HH last November established a ban on the use of AI to generate the content of affidavits, witness statements and character references.
The practice note has since been revised, with lawyers now able to feed sensitive materials into bespoke generative AI programs, so long as the data is not made publicly available, not used to train the AI program and not used in other proceedings.
The prohibitions also reach the other side of the bench. Associates can breath a sigh of relief, because NSW judges are also banned from using AI to formulate reasons and to edit their judgements.