The use of AI is becoming popular, perhaps too popular, and very controversial of late.  We have seen many situations of self-represented parties relying on AI but is it acceptable for members of the legal profession, particularly those who are highly qualified, to do so?  The Full Court says that it is not.

The case of Mertz & Mertz (No 3) [2025] FedCFamC1A 222 was an appeal set down to be heard by their honours, Aldridge, Carew and Behrens JJ and involved a South Australian solicitor, a Victorian barrister and a Victorian KC.  An appeal had been filed on behalf of their client and AI used to generate the written submissions.  The evidence of the solicitor was that it had been prepared by her paralegal but it does not seem that it was then checked for accuracy because the solicitor only made enquiries when asked by the KC whether or not AI had been used, such question apparently not asked when settling the written submissions.  The appeal was withdrawn two days prior to the scheduled hearing date however, the legal practitioners were required to file submissions as to their actions in the matter.

The initial Summary of Argument filed on behalf of the appellant contained “..non-existent, inaccurate and misleading authorities.” [1]

After receiving correspondence from the appeal judicial registrar on 11/11/2025 an amended List of Authorities was provided by the solicitor, to replace the previous list in its entirety.  No explanation was provided as to this course adopted.

Their Honours opined[2]:

17        Other Courts, including this one, are considering what guidelines and practice directions to issue, but the following are abundantly clear:

(1)     If AI is used to identify authorities for the purposes of any Court document, then it is incumbent on the author and those accepting responsibility for the document to verify that those authorities are both accurate and relevant to the proceedings. Each of the relevant legal practitioners conceded that they had not done so in respect of the original Summary of Argument and List of Authorities.

(2)     Where AI is used more widely, such as to prepare the text of submissions, create footnotes or prepare a chronology, the same responsibility to ensure that the material is accurate and relevant arises.

(3)     As the submissions of King’s Counsel and counsel in this matter acknowledge, the use of AI in the preparation of Summaries of Argument or other submissions does not absolve the author or person who accepts responsibility for the documents from any of their professional or ethical obligations to the Court or the administration of justice. To the contrary, it calls for careful interrogation of whether such use is appropriate, what disclosure is appropriate, and what safeguards must attend to its use.

Each of the solicitor and barristers were referred to the relevant regulatory body and an Order for costs made in favour of the respondent, against the solicitor personally, in the sum of $36,955 was made.

One would imagine that the appellant client may also have a cause of action for their costs incurred and the inability of the appeal to proceed.

[1] 3, The AI Issue

[2] 17, the AI Issue