Using Gen AI in legal proceedings - Ethics Check for Lawyers series

Generative Artificial Intelligence (Gen AI) is a type of artificial intelligence that uses generative models to produce text, images or videos based on patterns and structures of their training data set. Chat-GPT is one example and there are now many more bespoke programs directed to legal practitioners.

The Supreme Court of NSW issued an amended ‘AI Practice Note’ on 28 January 2025 regarding the use of Gen AI in proceedings before the Court. The AI Practice Note comes into effect on Monday, 3 February 2025. The District Court of NSW has recently adopted the AI Practice Note and an identical AI Practice Note has also been issued for the Land & Environment Court of NSW.

This article provides a brief overview of the implications of the AI Practice Note for lawyers and unrepresented parties in proceedings before the Courts to which it applies. This article also considers the recent joint Statement on the Use of AI in Australian Legal Practice published by the Law Society of NSW, the Legal Practice Board of Western Australia and the Victorian Legal Services Board & Commissioner on 12 December 2024.

AI Practice Note - commencing 3 February 2025

For the purposes of the AI Practice Note, Gen AI does not include technology or functionality which merely corrects spelling or grammar, provides transcription or translation, assists with formatting or otherwise does not generate substantive content.

What is not permitted?

Commencing from 3 February 2025, lawyers and unrepresented parties are, except in some limited circumstances:

• prohibited from entering into any Gen AI program any information that is subject to the implied (Harman) undertaking, or that is subject to non-publication or suppression orders, or that was produced on subpoena, or that is subject to any statutory prohibition on publication;

• prohibited from using Gen AI to generate the content of affidavits, witness statements, character references or other material that is intended to reflect the witness’s evidence and/or opinion or for other material tendered in evidence or used in cross examination-affidavits, witness statements and character references must contain a disclosure that Gen AI was not used in generating their content, or subject to leave being obtained, the content of any annexure or exhibit prepared by the deponent;

• prohibited from using Gen AI for the purpose of altering, embellishing, strengthening, or diluting or otherwise rephrasing a witness’s evidence expressed in written form;

• prohibited from allowing the use of Gen AI for drafting or preparing the content or any part of an expert report without prior leave of the court – the AI Practice note must be drawn to the attention of experts when instructing them.

What is permitted?

Subject to some limitations and requirements, lawyers and unrepresented parties can use Gen AI for:

• the generation of chronologies, indexes and witness lists;

• the preparation of briefs or draft Crown Case Statements;

• the summarising or review of documents and transcripts;

• the preparation of written submissions or summaries of arguments - the author must verify in the body of the document that all citations, legal and academic authority and case law and legislative references exist, are accurate and are relevant to the proceedings.

Ethical considerations for lawyers

The AI Practice Note stipulates that any use of Gen AI to prepare written submissions or summaries or skeletons of argument does not qualify or absolve the author(s) of any professional or ethical obligations to the Court and the administration of justice.

Joint Statement on the use of AI in Australian legal practice

The Law Society of NSW, the Legal Practice Board of WA and the Victorian Legal Services Board and Commissioner (all jurisdictions where the Legal Profession Uniform Law applies) have published a joint statement to assist lawyers in understanding their expectations when lawyers use AI tools to assist them in their legal work. 

Key takeaways

When using AI and other legal technology, lawyers must continue to maintain high ethical standards and comply with their professional obligations under the Legal Profession Uniform Law and Conduct Rules, including the requirement to:

• maintain client confidentiality;

• provide independent advice - lawyers must not rely on AI tools as a substitute for their own assessment and analysis of a client’s needs and circumstances;

• be honest and deliver legal services competently and diligently - lawyers must ensure that the contents of documents are accurate and not likely to mislead clients, the court or another party;

• charge costs that are fair, reasonable and proportionate - lawyers should ensure that the use of AI does not unnecessarily increase costs for their clients above traditional methods.

The joint statement also recommends that lawyers:

• implement clear risk-based policies to minimise data and security breaches and to ensure adequate supervision of the use of AI tools by junior staff;

• limit the use of AI tools to lower-risk tasks that are easier to verify;

• be transparent about the use of AI to clients.

Lawyers who fail to comply with their professional obligations are likely to face potential disciplinary consequences. In the recent case of Handa v Mallick [2024] FedCFamC2F 957 (19 July 2024) a lawyer was ordered to provide submissions to the Court as to why he ought not be referred to the Victorian Legal Services Board and Commissioner in relation to the list of authorities tendered by him at the hearing consisting of fictitious authorities generated by an AI tool. 

For more information on complaints and disciplinary matters please contact: Jennifer Shaw, Partner, Dispute Resolution & Advisory and Professional Conduct. Jennifer is a panel member of the Law Society of NSW’s Professional Conduct Advisory Panel and has acted for and advised clients in NSW, VIC, WA and the ACT in professional disciplinary matters.

Author: Jennifer Shaw