Dayal [2024] FedCFamC2F 1166 concerns Humphreys J’s reporting Dayal’s (the solicitor) conduct to the Office of the Victorian Legal Services Board and Commissioner. Dayal, a solicitor based in Victoria and the principal of C Law Firm, has been anonymised as “the solicitor” in the Court’s published reasoning, as Humphreys J’s decision is not designed to be punitive.
The solicitor submitted a list and summary of fabricated legal authorities to the Court. Submitting that, he created this list and summary using an artificial intelligence (“AI”) tool that is part of his legal practice management software. The solicitor admits that he did not verify the correctness of the information produced by the research tool before presenting it to the Court.
Background
In Handa & Mallick [2024] FedCFamC2F 957, the solicitor acted as an agent concerning an enforcement application about the sale of a property and matters related to the mortgage and the lending bank.
Humphreys J temporarily paused the matter so both parties could address previously mentioned issues concerning the enforcement application, explore the possibility of a negotiated resolution, and inquire whether either legal representative could provide a list of authorities they intended to rely upon if the case proceeded without a negotiated settlement.
The solicitor submitted a one-page list of authorities that neither Humprehys J nor the associates could find. When asked, the solicitor did not supply copies of the authorities. Following the case’s return to Court, Humphreys J asked the solicitor whether AI generated the list of authorities. The solicitor confirmed that he had created the list of authorities with legal software that included AI features.
Court Orders
On 19 July 2024, Humphreys J issued orders concerning the solicitor’s submission of an inaccurate list and summary of authorities:
The solicitor shall provide
- a copy of the court orders and a transcript from the proceedings on 19 July 2024
- an oral explanations to the solicitor representing the husband’s solicitors and share the transcript with the lawyers for both parties.
By 4:00 PM on 19 August 2024, the solicitor must email the Court a set of submissions (maximum five pages) explaining why the Court should not refer him to the Office of the Victorian Legal Services Board and Commissioner regarding the authorities he presented during the hearing.
Submissions
The solicitor submitted written arguments to the Court on 19 August 2024, admitting to several issues:
- On 19 July 2024, he presented a document that misrepresented legal authorities and included incorrect medium-neutral citations.
- He used an AI-based research tool to create the list of authorities that the solicitor and another lawyer should have verified for accuracy.
- He cited authorities did not exist.
- The solicitor has sincerely apologised to the Court and promised to implement measures to prevent similar issues.
- He clarified that there was no intention to mislead the Court and that he did not fully grasp how the AI tool functions.
- He has taken actions to alleviate the consequences of his behaviour, including reimbursing the opposing party for incurred costs.
- He has also sought continuous support from the Legal Practitioners Liability Committee (LPLC) and is willing to provide an affidavit to substantiate his submissions.
Legal Services Board and Commissioner
Humphreys J faces the issue of referring the matter to the Victorian Legal Services Board and Commissioner, an independent authority in Victoria tasked with effectively regulating the legal profession and upholding high ethical and professional standards.
Humphreys J accepted that the solicitor’s apology was sincere and recognised the measures taken to reduce the effects of his conduct on the other party involved in the litigation. That party’s counsel confirmed this at a later hearing. I also acknowledge the solicitor’s statement regarding his stress due to the consequences.
Ethical duties of legal practitioners
Although the Federal Court does not issue these guidelines and they do not directly apply to those conducting litigation here, Humphreys J highlighted them because they represent the ethical use of AI by legal practitioners in the context of litigation, particularly concerning their general obligations, such as the responsibility to avoid misleading the Court or other parties involved in the litigation process, as well as the commitment of candour toward the Court. In this regard, Humphreys J believes the insights these specific guidelines offer are relevant for legal practitioners engaged in litigation in the Federal Court.
Concerning the actions of the solicitor, his responsibilities as a solicitor in Victoria encompass:
(a) The paramount duty to the Court and to the administration of justice, which includes a specific duty not to deceive or knowingly or recklessly mislead the Court;
(b) Other fundamental ethical duties, including to deliver legal services competently and diligently; and
(c) To not engage in conduct that will likely diminish public confidence in the administration of justice or bring the legal profession into disrepute.
The solicitor has acknowledged a breach of the professional standards expected of a solicitor in this Court by his conduct in tendering a list and summary of authorities that do not exist, generated without disclosing the source of the information presented to the Court and without verifying its accuracy.
The Decision
Accordingly, Humphreys J directed the Principal Registrar of the Court (or his delegate) to provide copies of the following documents to the Office of the Legal Services Board and Commissioner to assist the Board and Commissioner in determining if they will take any further steps:
(a) These reasons;
(b) The written submissions provided by the solicitor dated 19 August 2024;
(c) The settled ex tempore reasons delivered on 19 July 2024 in the matter of Handa & Mallick[2024] FedCFamC2F 957; and
(d) The list of authorities and case summaries tendered by the solicitor at the hearing on 19 July 2024.
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