Business LawQuest LegalCourts draw the line with GenAI

January 16, 20250

Courts draw the line with GenAI

Human legal expertise remains irreplaceable

The legal practice is constantly evolving as new technologies arise. It’s been this way since the profession was founded in Australia more than two centuries ago. But, perhaps, few changes have been as significant as the one we’re currently experiencing: the era of artificial intelligence (AI). AI technologies have surged in salience in usage, particularly generative AI (GenAI) – and now the law’s catching up, with courts laying down strict guidelines for the use of GenAI in a legal setting.

Generative AI in legal work

GenAI such as ChatGPT, Bard, and bespoke legal tools like Lexis Advance AI are incredibly useful in the legal world. They offer unparalleled potential for streamlining tasks, such as drafting documents, summarising lengthy reports, and even assisting with research. However, no matter how seemingly human the responses can be, these tools cannot advise. At least, not under the law.

While GenAI excels at processing vast datasets and generating content, it lacks the ability to reason, understand complex human contexts, or make nuanced decisions. As the Victorian Legal Services Board CEO and Commissioner Fiona McLeay noted, “Unlike a professionally trained lawyer, AI can’t exercise superior judgment, or provide ethical and confidential services.” Ultimately, it’s up to lawyers to remain vigilant and ensure AI tools are used ethically and effectively.

Practice Note SC Gen 23: Use of generative artificial intelligence

Issued by the Chief Justice of New South Wales, Practice Note SC Gen 23 outlines strict parameters for AI usage in the state’s legal practice. Commencing February 3, 2025, the guidelines emphasise:

  • Prohibited use cases: AI must not be used to draft affidavits, witness statements, or other material that could or will be used as evidence. These documents must reflect a person’s own knowledge and cannot be altered or influenced by AI.
  • Disclosure requirements: If AI is used to assist with written submissions or other documents, the author must disclose its use and personally verify all citations and references.
  • Safeguards: In its current state, GenAI is fallible. Judges and practitioners must scrutinise GenAI outputs for inaccuracies, biased data, or “hallucinations” – false information presented as credible (sometimes repeatedly).

Statement on the use of artificial intelligence in Australian legal practice

McLeay and the Victorian Legal Services Board, alongside the Law Society of New South Wales and the Legal Practice Board of Western Australia, have issued a similar joint statement outlining expectations for lawyers using AI tools.

  • Client confidentiality: Lawyers must not input confidential, sensitive, or privileged client information into public AI chatbots or tools. When using commercial AI tools, it’s imperative to review contractual terms to ensure data security.
  • Independent advice: AI cannot reason, understand, or advise. Lawyers are responsible for their own judgment and must not rely on AI outputs when advising clients.
  • Competence and diligence: Given the potential for AI-generated content to contain inaccuracies, lawyers personally must verify all AI-assisted work to ensure accuracy and reliability.
  • Fair billing: If AI is used, lawyers should make sure it doesn’t add to the bill unfairly, with additional expenses due to factors such as verifying outputs.

Best practice for lawyers leveraging AI

The statement gives direction and consideration to lawyers using AI in their practice.

  1. Implement clear policies: These practices should establish guidelines for permissible AI uses, data handling, and supervision of AI tools – particularly for junior and support staff.
  2. Limit AI to low-risk tasks: Broadly, AI is best used for routine tasks like drafting non-critical correspondence, while reserving high-stakes work for human expertise.
  3. Maintain transparency: Clearly communicate with clients about AI usage and ensure billing reflects only the work performed by employed legal professionals.

Conclusion: AI is a complement, not a substitute

As AI tech continues to grow in adoption and capability, its integration into legal practice will undoubtedly grow with it. What these new guidelines and statements remind us is that the core value of the legal profession lies in human expertise, judgment, and ethical reasoning.

GenAI can support lawyers in delivering efficient and informed services, but the responsibility to uphold justice and fairness remains firmly in human hands.

Want to know more, or need to tap into our AI expertise? Contact our team today.

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