By Paul Gregoire and Ugur Nedim
An enforcement application was before Federal Circuit and Family Court Judge Amanda Humphreys on 19 July 2024, which had been filed on behalf of a Ms Mallick on 29 May 2024 and related to final property orders that had been consented to in November 2023.
An enforcement hearing takes place in the family court when an individual who is owed money, which in this case was Ms Mallick, by another individual, her husband Mr Handa in the present matter, so they can ascertain the financial situation of the person who is indebted to them.
But the matter before that court had to be adjourned, as it was found at the point when the legal representatives of each side were called upon to submit a document listing authorities that the individual representing Mr Handa had provided the federal court with false information.
The solicitor representing Handa, who is the applicant in the broader case, or the party who sought to bring it to trial, was Mr B, the principal of D Law Firm, and he had provided her Honour with a list of authorities he sought to rely upon, which on closer perusal turned out to be non-existent.
So, it would appear that B has fallen foul to one of the pitfalls of currently relying on artificial intelligence, or AI, technology to assist in legal matters, which is that it can accidentally generate false information.
And in the legal realm where matters of liberty and freedom hang in the balance, and cases can have a major impact on individual lives, the reliance on developing technologies that aren’t foolproof raises questions about the “competency and ethics” of lawyers that would act in such a manner.
Generating appropriate cases
As Judge Humphreys explained the incident in her reasons in late July, the matter had been stood down, or temporarily paused that morning, so both parties could discuss issues already raised in relation to the enforcement application, so as to inquire into the prospect of a negotiated resolution.
The subject of the enforcement proceedings was the sale of a property and issues relating the mortgage and the lending bank. And on adjournment, her Honour foreshadowed future proceedings in calling on each party to supply a copy of the November 2023 final orders.
And at the point the court was to adjourn, Judge Humphreys asked if either of the legal representatives was in a position to provide her with a list of the authorities that they sought to rely upon if the matter was to proceed in court that day and no negotiated agreement was come to.
So, lawyer B submitted a list of four authorities he planned to rely upon during the proceedings. B was a solicitor, who was only acting on behalf of the husband and his regular firm MS Aus Lawyers for the enforcement application and proceedings, which the court had been officially notified in regard to.
But on returning to her chamber, Judge Humphreys and her associates were unable to identify any of the cases on the list that lawyer B had submitted.
“The case citations provided for each of the four listed cases correspond with cases reported by names,” her Honour explained in her reasons. “My associates asked Mr B to provide copies of the authorities referred to in the list, and he did not do so.”
Legal authorities are past cases that involve a judgement that is considered to be the correct manner in which a particular type of legal matter should be resolved in.
For example, in the jurisdiction of NSW, the authority on what “reasonable suspicion” means in terms of a police officer holding a suspicion, which in turn provides them with the right to search a civilian or their vehicle, is defined in the 2001 NSW Court of Criminal Appeal case R versus Rondo.
A serious miscalculation
“When the matter returned to court, I asked Mr B if the list of authorities had been provided using artificial intelligence,” Judge Humphreys recalled. “He informed me the list had been prepared from LEAP, being a legal software package, as I understand it, used for legal practice management and other purposes.”
“I asked if LEAP relies on artificial intelligence,” her Honour continued. “He indicated that it does, answering, ‘There is an artificial intelligence for LEAP’.”
Founded in Sydney in 1992, LEAP Legal Software is an organisation that has been producing packages for law firms to assist in accounting and documentation for three decades. And the award-winning company has been updating its software programs over this time, which are now widely used across the Five Eyes nations: the US, the UK, Canada, New Zealand and Australia.
Lawyer B told the federal judge that he’d put the list together with the aid of LEAP and MS Aus Lawyers had nothing to do with it. And Judge Humphreys then raised issue with the “competency and ethics of Mr B”, so she had Handa consult a duty lawyer about whether to proceed with B’s representation for the rest of the day’s proceedings and he informed the court that he would.
On that same day, her Honour ordered lawyer B to provide her, by way of email, with a document not more than five pages long “identifying any reasons” as to why she ought not to refer him “to the Office of the Victorian Legal Services Board and Commissioner in relation to the list of authorities tendered”.
Her Honour gave the lawyer until 4 pm that same day to provide her with the reasons as to why he should not be the subject of further investigation, and he told the court he would be in a “position to provide further information in respect of two of the cases identified in the tendered list of authorities and how material was downloaded from LEAP”.
The view from the keyboard would suggest that lawyer B was, rather than trying to dupe the court, attempting to quickly provide it with accurate information using an AI tool, when artificial intelligence is not at a point where it can be treated as a foolproof assistant, especially in a court of law.
