Manitoba lawyers ordered to disclose use of AI in submissions By: Danielle Da Silva Posted: 6:30 PM CDT Wednesday, Jun. 28, 2023

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Manitoba attorneys and self-represented litigants are now required to disclose the use of artificial intelligence in submissions prepared for the Court of King’s Bench.

Chief Justice Glenn Joyal issued a practice direction on June 23 that states all court submissions must indicate if AI was used in their preparation and how the novel technologies were applied.

Joyal cited legitimate concerns about the reliability and accuracy of information generated by AI programs and ongoing discussions about its responsible use in court cases as reasons for the directive.

“It’s a modest first step, which is using a tone that’s both cautionary and anticipatory,” Joyal said in an interview. “We know that AI is around now and it’s probably going to be used increasingly in courts, like it will elsewhere.

“We don’t know how it’s going to be used, and we don’t know how it’s going to evolve, but we have to be cautious with respect to it.”

It’s critical for the court to know if AI is being used in a case, Joyal said, noting its application must follow established rules of evidence and procedural conventions.

“If it is, then we still have to ask another question: is this use something that we as judges and other lawyers can verify for its reliability and credibility,” Joyal said.

Manitoba Bar Association president Tanya Keller said a recent mishap at Manhattan federal court — in which two lawyers blamed ChatGPT for including fictitious case law in a court filing — highlights the pitfalls of the technology.

ChatGPT is a generative AI program that produces copy and content in response to prompts from a user. While the chat bot can write coherent and human-like responses by pulling from a massive database of media and material, the content is not always reliable.

The two New York City attorneys attempted to use the tool to find legal precedents that supported their client’s case, The Associated Press reported. Instead, the bot invented fictitious legal cases and opinions that were included by the lawyers in the filings; the pair and their firm were fined $5,000.

“I suppose the court’s concern was just that they didn’t want to get into that kind of a situation and have proactively tried to address it with this practise direction,” Keller said.

“We don’t know how it’s going to be used, and we don’t know how it’s going to evolve, but we have to be cautious with respect to it.”–Chief Justice Glenn Joyal

Criminal Defence Lawyers Association of Manitoba communications director Chris Gamby said the directive is a reminder to the legal profession to exercise caution when using AI tools and to take the necessary steps to ensure material before the courts is factual.

It may also save lawyers the mortification of filing a brief with a fake citation, he said.

“It sounds to me as though the technology at this point is still good at dealing with fiction, maybe not quite as good at dealing with strictly real information. That might be a current limitation,” the practising defence lawyer said.

“Lawyers themselves still have a professional responsibility to make sure that they’re treating courts with candour and respect. Making up a case whether knowingly or unknowingly, I think would probably be a breach of that responsibility,” he said.

Gamby and Keller agreed disclosing the use of AI in court submissions is useful and would likely prompt a greater level of scrutiny, owing to the limitations of AI.

“The idea is you cite your sources. So if your source is AI, you should be citing that,” said Keller, a family law attorney.

“It’s for transparency’s sake.”

“The idea is you cite your sources. So if your source is AI, you should be citing that.”–Tanya Keller

In general, routine or established software and programs are not in scope of the directive, Joyal said.

“We all can objectively know that a spell check is something that can be verified and it’s not a use that’s questionable or impermissible,” he said.

However, we can’t completely define where AI begins and where AI ends in terms of its potential uses, Joyal added.

“So, that’s why we’re saying disclose it. Disclose what you think is obviously AI and then we can assess it.”

It’s not known how widely AI is used in court submissions in Manitoba, Joyal said, but so far the Court of King’s Bench has not had any trouble with misuse of the tools.

In the future, generative-AI could be used to increase access to justice, particularly to help self-represented litigants create court submissions, he said.

“We have to be open-minded and humble about how we look at the phenomenon in respect of both its potentially good uses and bad uses,” Joyal said.

The chief justice said he expects other courts will also look at this issue and over time national standards for the use of artificial intelligence may be developed.

danielle.dasilva@freepress.mb.ca