A Victorian lawyer who relied on non-existent, AI-generated authorities has had his practising certificate varied following regulatory action by the Victorian Legal Services Board.
This follows similar instances recently reported on (see Federal Court order costs over use of Gen AI), where indemnity costs orders have been made against solicitors, following inappropriate reliance on AI generated materials.
In this case, a lawyer who was the principal of his firm used a generative AI tool incorporated into his legal practice management software, to generate a list and summary of authorities. The lawyer did not verify the authorities or the accuracy of the information before tendering it to Court.
The lawyer acknowledged that the authorities did not exist and that neither he, nor any other lawyer, had reviewed the output generated by the AI research tool. He also acknowledged that he did not fully understand how the research tool worked.
Although the lawyer took steps to mitigate the impact of submitting materials which contained non-existent authorities, including voluntarily paying the opposing solicitors for wasted costs, the Federal Circuit and Family Court decided to refer him to the lawyers’ regulatory body, the Victorian Legal Services Board.
The Court reiterated the guidelines issued to the profession by the Supreme Court and County Court (see Guidelines), emphasising that generative AI output is not the product of legal reasoning and nor is generative AI a legal research tool. In referring the matter to the regulatory body, the Court noted that the lawyer had breached expected professional standards.
The Victorian Legal Services Board then varied the lawyers’ practising certificate, resulting in the lawyer:
- No longer entitled to practise as a principal lawyer;
- No longer authorised to handle trust money;
- No longer operating his own law practice;
- Permitted to practise only as an employee solicitor;
- Required to undertake supervised legal practice for a period of two years; and
- Obliged, along with his supervisor, to report to the Victorian Legal Services Board on a quarterly basis during the period of supervised legal practice.
The above represent a significant limitation on the ability to practise for a lawyer who had been operating his own firm as a principal. It serves as a stark reminder to the profession to use AI appropriately in their legal practice, to ensure they understand the tools they are using in their practice and the associated risks, and above all, to operate with the overarching duty to the Court as their key guide.