Lawyers in England and Wales should be required to disclose if they have used artificial intelligence technology when preparing court documents used in evidence, the Civil Justice Council has suggested.
“In specific circumstances, and depending on what use of AI has been made, legal representatives involved in the preparation of court documents should be required to make a declaration relating to its use,” said the CJC, a public body set up to oversee and co-ordinate the modernisation of the civil justice system.
The proposal has been made in a consultation on whether rules are needed for legal professionals’ increasing use of AI when preparing court documents, including pleadings, witness statements and expert reports.
A working group of lawyers, barristers and judges, including representatives from the Law Society and Bar Council, will publish a consultation paper and then a final report. The consultation will close in mid-April.
The consultation comes as legal systems around the world attempt to maximise the benefits of using AI − quicker research, data analysis and preparation of court documents – and minimise its risks, most notably AI making up or ‘hallucinating’ legal information and arguments, including citations that are used in court.
Countries including Singapore, New Zealand and the US have issued guidance on the use of AI in court proceedings. In some US jurisdictions, courts require attorneys to submit a certification or notice, outlining any use of generative AI tools, especially for legal citations. They also need to confirm they have verified the information using reliable, traditional sources, the CJC noted in its consultation.
Last year, the United Nations Educational, Scientific and Cultural Organisation (Unesco) published guidelines on the use of AI systems in courts and tribunals.
AI has already transformed the way in which the legal profession conducts research, analyses data and prepares court documents, the CJC said in its consultation. Yet such benefits “do not come without significant risk”, it added.
Last year, the judiciary of England and Wales reminded legal representatives they are responsible for any material they put before the court or tribunal and that they have a professional obligation to ensure it is accurate. The guidance said that as long as lawyers use AI responsibly there is no reason why they should have to disclose they have used it.
The CJC consultation will examine how AI is used to prepare four types of court document: statements of case, including defence and grounds of appeal; skeleton arguments and other advocacy documents; witness statements; and expert reports.
Brett Dixon, vice president of the Law Society of England and Wales, said the consultation was “timely and important”.
He added: “Innovation is valued and the justice system, law firms and solicitors are all embracing new technologies. However, clarity is needed to protect confidentiality, accuracy and fairness while ensuring that lawyers understand how to take full responsibility for the documents they prepare for the courts.”
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