Advancements in artificial intelligence (AI) continue at an almost meteoric pace. History has proven that technological innovation can be seen as either a blessing or a curse, depending on how that technology is used and for what purpose. AI is no exception.
Artificial intelligence's reach seems boundless, and has found applications in the legal profession. But, like any technology, it deserves due care and caution if it is to be utilized correctly. Indeed, this issue was raised earlier this month by Ontario Superior Court Justice Fred Myers in Ko v. Li, the first Ontario case to report on the misuse of AI.
Artificial intelligence has touched our lives in so many different aspects. For lawyers, it provides obvious advantages, as noted in the research paper Legal Ethics in the Use of Artificial Intelligence.
"Without a doubt, AI promises to fundamentally transform the practice of law. AI holds out the promise of freeing lawyers from mundane tasks and allowing them to devote more of their time to counselling clients, which, after all, is the core of what lawyers do. Lawyers should not fear AI, but rather should embrace it. Professional ethics require them to do so," the report stated, warning, however, that "Lawyers must be aware of the ethical issues involved in using (and not using) AI, and they must have an awareness of how AI may be flawed or biased."
The Consequences of Misuse.
There is no questioning the benefits of this technology, but its misuse could well erode the public's confidence in our justice system. The courts have warned lawyers about the consequences of failing to exercise their professional judgment when relying on AI. In Ko v. Li, the court's concerns are clearly annunciated.
The case involves an estates/family law application, in which the lawyer for the applicant delivered a factum containing citations that were either incorrect or led to non-existent cases.
Justice Myers determined that one hyperlink in the factum pointed to a case that was unrelated to the facts at hand. In another, the link led the court to "the common internet error message: 404 Error - Page not found."
The judge suspected that the factum might have been created by AI and that the attorney did not verify the authenticity of the cases cited.
The Need for Accuracy.
He emphasized a lawyer's duty to ensure the accuracy of legal citations, not to fabricate case precedents, and to supervise the use of technology, including AI. The judge highlighted the importance of human review of materials prepared by AI and the fundamental duty of a litigation lawyer not to mislead the court.
"I asked [the lawyer] if her factum was prepared by artificial intelligence - like ChatGPT," Justice Myers wrote in the motion. "She told me that her office does not usually do so but that she would have to check with her clerk. [The lawyer] was unable to provide me with citations to the cases cited in her factum or to provide me with copies of the cases from the printed papers she was using to make her submissions. I advised the parties that this was a significant issue that I would deal with later."
He emphasized the need for lawyers to rely on accurate and existing authorities.
"This occurrence seems similar to cases in which people have had factums drafted by generative artificial intelligence applications (like ChatGPT)," Justice Myers wrote. "Some of these applications have been found to sometimes create fake legal citations that have been dubbed 'hallucinations.'"
Duties to the Court.
He noted that the factum submitted by the lawyer "may have been created by AI and that before filing the factum and relying on it in court, she might not have checked to make sure the cases were real or supported the propositions of law which she submitted to the court in writing and then again orally."
Justice Myers said every lawyer has duties to the court, to their clients and to the administration of justice:
- It is the lawyer's duty to faithfully represent the law to the court.
- It is the lawyer's duty not to fabricate case precedents and not to miscite cases for propositions that they do not support.
- It is the lawyer's duty to use technology, conduct legal research, and prepare court documents competently.
- It is the lawyer's duty to supervise staff and review material prepared for their signature.
- It is the lawyer's duty to ensure human review of materials prepared by non-human technology, such as generative artificial intelligence.
"It should go without saying that it is the lawyer's duty to read cases before submitting them to a court as precedential authorities," he wrote. "At its barest minimum, it is the lawyer's duty not to submit case authorities that do not exist or that stand for the opposite of the lawyer's submission. It is the litigation lawyer's most fundamental duty not to mislead the court."
Quickly Became an Important Issue.
The judge said the court "must quickly and firmly make clear that, regardless of technology, lawyers cannot rely on non-existent authorities or cases that say the opposite of what is submitted."
"With the sudden advent of AI, this has quickly become a very important issue," wrote Justice Myers. "In the U.S., several cases have been reported in which courts have grappled with issues arising from a lawyer's brief containing AI hallucinations."
He cited the decision in Zhang v. Chen, in which Justice D.M. Masuhara wrote, "Citing fake cases in court filings and other materials handed up to the court is an abuse of process and is tantamount to making a false statement to the court. Unchecked, it can lead to a miscarriage of justice."
In that particular case, the lawyer caught her mistake before the hearing and apologized before withdrawing her factum.
"Here, counsel actively relied on two of the suspicious cases as part of her submissions in open court," Justice Myers stated. "In the few days that have passed since the oral hearing, I have not received any communication from [her] explaining, correcting her factum, or otherwise acknowledging an issue."
He went on to state that the lawyer "may have committed grave breaches of her duties that may amount to contempt in the face of the court."
Bound by Professional Obligations.
Technology is constantly changing the way the legal profession does business, but it does not abrogate our essential duties as lawyers. We are bound by the professional obligations set out by the Law Society of Ontario (LSO). That means we have a responsibility when utilizing AI tools to understand how they work. It is our duty to supervise the correct use of these tools and to ensure the information that is being disseminated is accurate.
"A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity," states the LSO. "Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer's irresponsible conduct. Accordingly, a lawyer's conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety."
It is an obligation Gluckstein Lawyers takes seriously.