Newsletters

Introduction
The usefulness for Artificial Intelligence-powered tools in the legal profession are evidential in the increasing reliance on same in legal research, predictive analysis, contract review, drafting documents and many other aspects of the legal profession at large. Regardless, of the obvious usefulness of these tools the rapid developments in AI has brought about significant implications as well as considerable ethical considerations, in the legal profession.

This article shall explore ethical considerations on the use of AI, particularly on how AI affects counsel’s duty to the court

Case Study of Philip Godfrey Madunvla v. MEC Department of Co-Operative Government and Traditional Affairs Kwazulu-Natal & 3 Ors
This case highlights issues related to the accuracy of legal research and the responsibilities of legal practitioners in presenting credible arguments in court.

In that case, the Applicant applied for leave to appeal against the findings of fact and/or rulings of law that had been delivered in that case. The applicant filed a notice of leave to appeal (‘notice of appeal’) a few days after the order was granted, and a supplementary notice of application for leave to appeal (‘supplementary notice of appeal’) was filed, which contained several references to case authorities in support of submissions made in respect of the grounds of appeal.

During the proceedings, the court raised serious concerns about the legal citations provided by the applicant's legal team. It was revealed that many of the cases cited were either incorrect, non-existent, or quoted out of context. The judge questioned the validity of the research conducted by the Applicant’s legal representative, who claimed to have sourced the citations from law journals but could not provide specific details about her research methods.

The court allowed for adjournments to give the legal team time to locate the correct cases, emphasizing the need for accurate legal references. However, the legal team struggled to provide the necessary citations, leading to further complications in the case.

Ultimately, the court dismissed the application for leave to appeal, stating that there were no reasonable prospects of success. The judge also ordered that costs be awarded. Additionally, the registrar was instructed to forward a copy of the judgment to the Legal Practice Council for further investigation.

The Intersection of Artificial Intelligence and Legal Ethics with Reference to the Judgment of the Court in Madunvla vis-à-vis the Nigerian Jurisprudence on the Matter
The case of Mavundla’s raises several important ethical considerations for legal practitioners, particularly regarding their obligation on the integrity of their legal research. Legal practitioners are expected to conduct thorough and accurate legal research. The reliance on potentially unreliable sources, such as Artificial Intelligence-powered tools like ChatGPT, without proper verification can lead to misleading information being presented in court.

The case raises questions about the appropriateness of using AI tools for legal research and the need for lawyers to critically evaluate the information provided by such tools. Lawyers have an ethical obligation to ensure that the information they present to the court is accurate and reliable. This includes verifying the sources of legal citations, regardless of whether they were generated by AI or traditional research methods.

The case underscores the importance of maintaining professional standards and not relying solely on technology without proper oversight. In the words of the court:

“it is in my view clear that the above mentioned principal should be expanded to include that a court should also be able to assume and rely on counsel’s tacit representation that the authorities cited and relied upon do actually exist. Ms Pillay blindly relied on authorities provided to her by Ms Farouk, without checking the references when addressing me at the initial hearing.”

The above ratio decidendi of the court can be likened to the Nigerian case of Nnaemeka & Anor v. INEC where the apex court had this to say:

"Legal practitioners, by virtue of their professional training and expertise are generally expected to provide reliable guidance in all matters relating to the judicial process. They serve as the intermediary between the Court and the litigants and as such, clients place significant trust in their legal representation throughout the proceedings. It is acknowledged that legal practitioners are human and as such, are not infallible. They are susceptible to making errors and omissions in their professional duties, whether acting in the capacity of solicitor or advocate. Perfection is not attainable by any human being and it is understood that counsel, while skilled and knowledgeable, may make mistakes due to their inherent humanity."

As technology becomes increasingly integrated into legal practice, ethical guidelines regarding its use must be established. This case serves as a much needed reminder to lawyers that when it comes to legal research, the efficiency of modern technology still needs to be infused with traditional legal research and writing.

Duty of Counsel to the Court in the Age of Artificial Intelligence
The judgment in Mavundla’s case underscores the fundamental duty of legal practitioners to the court. Lawyers are bound by a professional obligation to act with honesty and integrity in their dealings with the judiciary. Misleading the courts whether through deliberate actions or negligence constitutes a grave breach of professional ethics.

While legal practitioners owe their clients zealous representation, this duty does not and cannot supersede their obligations to the court. The integration of artificial intelligence (AI) into legal practice amplifies the need for diligence in ensuring that the use of such tools supports, rather than undermines, the pursuit of justice. For instance, if an AI-powered tool generates case citations, lawyers must leverage their expertise to conduct proper research, verify sources, and ascertain the legitimacy of the information presented.

This necessity was exemplified in Mata v. Avianca , where fabricated AI-generated case citations led to judicial sanctions, highlighting the critical importance of oversight when using AI tools.

This duty is further codified in Rule 1 of the Rules of Professional Conduct (2023), which states that "a lawyer, as an officer of the court, shall not conduct himself in any manner that may obstruct, delay, or adversely affect the administration of justice." The rule emphasizes that legal practitioners must maintain the integrity of the legal process, even when utilising modern technological aids such as AI.

Instances of AI "hallucinations," where AI systems generate plausible but fabricated information, have brought significant ethical challenges to the forefront. Notable cases include disciplinary actions against lawyers in Australia for submitting non-existent case citations generated by AI tools. The Australian judiciary has responded with calls for stricter professional guidelines to address these risks. These cases demonstrate that reliance on AI must be complemented by rigorous human oversight to ensure the accuracy and credibility of the information presented.

Conclusion
AI provides valuable tools to enhance legal practice, but its utilisation must be approached responsibly. Legal practitioners have a foremost duty to preserve the integrity of the legal process and ensure justice is served. While AI-powered tools can complement traditional legal research and writing, they cannot replace the critical role of legal expertise. Counsel remains ultimately accountable for the content they present, regardless of its source, and must critically evaluate AI-generated outputs to ensure the accuracy and honesty of their submissions. Technology should therefore serve as an aid, not a substitute, for the professional judgment and responsibility integral to the practice of law.

Click to read the full article