Lawyers could be referred to their professional regulatory body or forced personally to pay legal costs if their use of artificial intelligence (AI) leads to fake sources being quoted in court documents.
The possible sanctions were flagged by the president of the High Court, David Barniville, in a direction to practitioners and litigants on how AI should and should not be used in legal proceedings.
He said the court recognised that generative AI tools could improve efficiency, reduce case costs and enhance access to justice.
However, he said these brought with them a risk of inaccuracy, including the production of seemingly plausible material that was false or misleading. AI could also generate “deep fake” material, fictitious cases and other “hallucinations”, the judge said.
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Barniville highlighted potential privacy risks with inputting case information into AI tools. He said privileged information could lose its protected status and be required to be disclosed to legal opponents if entered into an AI system.
Lawyers were obliged to ensure the court was not misled and must verify the accuracy of AI-generated information used by them or their clients, he said.
Failure to comply with the court’s new direction, which takes effect on September 1st, could affect the integrity of cases and “undermine public confidence in the administration of justice”, he said.
Those who fail to comply could be ordered to pay extra legal costs and could see part or all of their claim or defence struck out.
Lawyers may be referred to the Legal Services Regulatory Authority and be personally made to pay legal costs if found to have breached the direction on AI.
The judge said litigants who were not represented by lawyers were also subject to the same obligations of accuracy and candour. They too must verify the accuracy of their submissions and could face sanctions if their AI use misled the court.
From next month witnesses must declare that AI had not been used to generate “substantive content” in their witness statement or affidavit and that the documents reflected their personal knowledge, recollection and evidence. The use of AI for formatting or spellchecking would not undermine this declaration, it was stated in the practice direction. Last March, the Court of Appeal noted that former Irish Independent journalist and activist Gemma O’Doherty had cited legal authorities that “simply did not exist”.
The court said it did not believe that O’Doherty, who did not have lawyers representing her, intended to mislead the court or was aware she was citing fictional cases.
It was noted there was no guidance at that point to help self-representing litigants know how to use AI in their cases.
In May, High Court judge Mark Dunne said he became concerned about the words used by a defendant in a case seeking possession of her Co Cavan property.
He said it was “obvious” the woman, who was not legally represented, had used AI to assist with her written legal arguments. She admitted to using it when pressed and the judge was satisfied she knew her own case and did not try to mislead the court.