Key Points
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The Court has created new rules for practitioners and guidance for judges in the use of Gen AI
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Lawyers will now need to limit their use of Gen AI to certain situations and declare when they have or have not been using Gen AI
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Changes to come into effect in Feb 2025
Introduction
On 21 November 2024, the Supreme Court released
Practice Note SC Gen 23 – Generative AI Practice Note and Judicial Guidelines. The Practice Note will commence on 3 February 2025. It seeks to set out how lawyers in litigation should use and engage with Generative Artificial Intelligence (Gen AI) with respect to both closed-source and open-source Large Language Models.
What does Gen AI do?
Gen AI is increasingly used to assist with the litigation process by both lawyers and unrepresented parties. It can help with drafting submissions, summarise documents and assist with responding to requests for information. It does these things by drawing on the data that it has access to, either from a small, defined dataset or from the entire internet in order to produce results that align with the data.
While there are an increasing number of Gen AI products specifically designed for lawyers, more general Gen AI models can and have been used to assist with litigation. These go hand in hand with other technological assistants, which are not included in this practice note, such as formatting, spelling and grammar assistants, chronology assistants, search engines or dedicated legal research software (including AI powered legal research software).
Guidance for Practitioners
The Supreme Court have set out clear rules for when practitioners can and cannot use Gen AI when preparing for litigation.
Gen AI
cannot be used under any circumstances to
- verify any references or citations contained in AI generated submissions, skeletons or summaries;
- generate or edit the content of evidentiary material; or
- involve information that is subject to court confidentiality in any context, i.e. non-publication or suppression orders, Harman undertakings, subpoena material, statutory prohibition.
All affidavits, witness statements and character references must contain a disclosure stating that Gen AI was not used to generate the content of the document or (subject to leave) the content of any annexure or exhibit.
Gen AI
cannot be used without leave in the following circumstances:
- to prepare or generate an annexure or exhibit to an evidentiary statement; or
- to draft or prepare an expert report.
When applying for leave, a practitioner must identify
- the proposed use of Gen AI
- the program to be used
- whether the program is closed- or open-source and its privacy and confidentiality settings
- the benefit to be derived from its use
- for expert reports only – the documents proposed to be submitted to the program.
If leave is granted for the preparation of an expert report, the use of AI must be recorded and disclosed within the report.
Gen AI may be used to prepare written submissions, skeletons or summaries of arguments. Where Gen AI is used in this capacity, the author must verify in the body of the document that all citations and references exist, are accurate and are relevant.
Judges are prohibited from using Gen AI in the editing or proofing of draft judgments and uploading any part of a draft judgment to a Gen AI program. Judges and their staff may use Gen AI for secondary purposes such as research, however when this is done, the following applies
- judges should be familiar with the risks and limitations associated with Gen AI;
- the product of all Gen AI generated research should be carefully scrutinised and verified by a human;
- Tipstaves, associates and researchers should disclose to their Judges when they are using Gen AI and verify their results.
Additionally, judges should be increasingly aware of identifying when materials have been prepared with Gen AI.
What are the major consequences?
Gen AI is an incredibly useful tool, and the Supreme Court has clearly indicated that they are anticipating that Gen AI will play an increasing role in how the court functions and how lawyers engage with the judicial system. While technology is becoming increasingly important, his Honour Andrew Bell CJ said at the briefing on Monday 2 December 2024 on the Court’s YouTube Channel, that "
the legal profession has always been a critical thinking profession and subject to important ethical constraints", and that while the approach of the Court might be “cautious and conservative
"it is important to ensure that the profession does not abrogate its responsibilities to a computer “no matter how sophisticated".
The Practice Note largely focuses on two key factors. The first is ensuring Gen AI does not impact the quality of material that is placed before it when deciding matters. The Court will always rely on the quality of evidence as essential for determining cases and ensuring that the content of statements reflects their true words is of great significance. The Chief Justice emphasised during the briefing that the
“basic view that the evidence has to be the evidence of the witness” and that Gen AI cannot embellish the words of the witness as it can mislead the court.
The second relates to the intersection between Gen AI and data. Data is the foundation upon which Gen AI operates. There remain concerns about how the data is used and input into the Gen AI product, despite confidentiality obligations. Parties should also be aware that data entered into Gen AI programs may be used to train the large language model, potentially making confidential information available to others. This could be in breach of confidentiality orders or suppression orders, as well as the implied (Harman) undertaking not to use information produced under compulsion for any purposes extraneous to the proceedings without the leave of the Court. Legal practitioners and unrepresented parties should be aware of limits, risks and shortcomings of any particular Gen AI program which they use.
Whilst practitioners still need to operate within the boundaries of their ethical obligations, there are still questions as to how judges will be able to determine which Gen AI models are acceptable within the risk framework outlined by the practice note. As Gen AI continues to evolve, we would expect to see more guidance as to what factors judges will need to look at when determining applications for leave to use Gen AI.
Due to the rapidly developing nature of Gen AI, this Practice Note will be periodically reviewed.
Conclusion
As the use of Gen AI grows in the legal sector, it presents a new challenge for the courts and legal practices. The changes outlined above mark the beginning of a significant shift in legal procedures and court operations. These changes are also the first of many, and we will keep you updated as new developments emerge.
Article written by Hicksons’ Partner, Chloe Ellis and Graduate, Rafael Owen.