In contrast, there are real risks connected to the use of GenAI in the legal context. While there is already a variety of guidance available about how to incorporate GenAI into legal practice responsibly (see: Guidelines for use of Generative Artificial Intelligence in Courts and Tribunals and Lawyers and Generative AI), the New Zealand Law Society Te Kāhui Ture o Aotearoa wishes to remind lawyers of their duties owed to clients and the courts in this regard.

GenAI in the courtroom  

One of the limitations of GenAI is that it cannot fact check itself in the same way a human can. Increasingly, there have been instances of GenAI hallucinations appearing in court submissions. For example, the New Zealand courts are already grappling with references to cases that do not exist during proceedings.

So far, an educative approach has been taken by decision-makers while litigants in person and the profession adapt to the technology. However, as overseas developments reflect, it is possible that decision-makers will move towards a more enforcement-focused approach to deter inappropriate use of GenAI in litigation matters. Sanctions have already been imposed in cases in the United Kingdom and United States, including indemnity costs, referrals to regulatory bodies and fines. Closer to home, the Victorian Legal Services Board + Commissioner restricted a lawyer’s practising certificate to prevent them from acting as a principal lawyer after they cited inaccurate authorities in a Family Court case.

While GenAI can provide help with the preparation of documents, it cannot replace an individual’s professional judgement or critical analysis. Responsibility for submissions created using GenAI remains with the individual putting them before the court. Any work produced by GenAI should be treated like that of an assistant, with thorough checks completed before filing.   

Professional obligations and GenAI  

Lawyers must prioritise their duties under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) and be aware of how the inappropriate use of GenAI can lead to non-compliance.   

When acting in litigation, lawyers have an absolute duty of honesty to the court under rule 13.1. Supplying the courts with documents containing GenAI hallucinations, even inadvertently, puts lawyers at risk of breaching their duties to act competently and not to engage in conduct that is misleading or deceptive under rules 3 and 10.9.   

For those practising on their own account, allowing unmonitored use of GenAI may also risk breaching their duties under rules 11 and 11.1 to provide appropriate management and supervision of their practice.    

Competent use of GenAI  

GenAI can be a powerful and practical tool, if used with the correct safeguards. It is essential for lawyers to engage with GenAI competently, otherwise they may breach their duties under the RCCC as outlined above.   

At the outset, lawyers must understand the uses and limitations of AI and be clear about when they should use it. Firms should have clear policies in place for all staff about how to use GenAI and how they will monitor quality assurance. For lawyers practising on their own account, they must ensure that staff are only using GenAI as authorised to enable appropriate supervision and management of their practice.   

As a minimum, having a human independently check citations created by any GenAI research is vital. The Law Society Library is available to assist with verification of sources. Lawyers are also encouraged to review their firm’s GenAI policies and ensure all work prepared using GenAI is thoroughly examined before submission.   

 For more information on minimising risk around privacy, data protection and intellectual property, please refer to the Law Society’s GenAI guidelines.