Lawyers in Deep Trouble for Using AI to Draft Court Papers

“Of the nine cases referred to and cited, only two could be found to exist, albeit that the citation of one was incorrect,” wrote Judge Elsja-Marie Bezuidenhout about an application for leave to appeal.

A law firm has been left with legal egg on its face – and the possibility of facing a Legal Practice Council (LPC) investigation – for allegedly using “Google” and Artificial Intelligence (AI) to source what were non-existent legal citations in court proceedings.

Pietermaritzburg-based Surendra Singh and Associates has also been ordered to pay the costs, from its own coffers, of two court hearings in September last year during which Pietermaritzburg High Court Judge Elsja-Marie Bezuidenhout interrogated its court documents and references to case law.

From submissions and her own research the judge concluded that “while the real source of the authorities quoted remain unknown” it was likely that the firm had relied on AI technology which was “irresponsible and downright unprofessional”.

Judge Bezuidenhout referred her ruling to the LPC and “urged that it obtain a recording of the entire proceedings including any comments made before I entered court as well as submissions made by the various representatives of the applicant”.

The law firm was representing controversial KwaZulu-Natal politician Godfrey Mvundla who was elected Mayor of Umvoti last year but was then suspended, a decision he claimed had been taken at an “unlawful meeting” of the council.

While Mvundla secured an interim interdict against the Umvoti Local Municipality, Judge Bezuidenhout ultimately discharged the interdict and rescinded the order.

Mvundla then applied for leave to appeal against her ruling. In this application his lawyers cited various “case authorities” to support their submissions that Judge Bezuidenhout had been wrong in law in some of her findings.

In her judgment refusing leave to appeal, which was handed down on 8 January, Judge Bezuidenhout said Mavundla’s counsel, Ms S Pillay (who was briefed by the law firm) had, in written submissions and argument, referred to several cases.

Judge Bezuidenhout said that initially one in particular had concerned her. She could find no such case in any of the official law reports. She asked two law researchers at the court to peruse the notice of appeal and to provide her with information of all the cited cases.

“Of the nine cases referred to and cited, only two could be found to exist, albeit that the citation of one was incorrect,” the judge said.

“I had serious concerns,” she said. She asked Pillay to provide her with copies of the cases. Pillay responded that she had been provided with the references by an “articled clerk” and that she had not had sight of the cases as she was “overbooked” and under a lot of pressure.

It then came to light that the notice of appeal had been drafted by the clerk.

Judge Bezuidenhout directed that the clerk come to court to explain herself.

“She duly appeared before me and explained that she had obtained the cases from law journals by doing research through her so-called Unisa portal. I asked her which law journals specifically and she could not respond. I asked her if she had by any chance used an artificial intelligence application such as ChatGPT but she denied having done so,” Judge Bezuidenhout said.

The judge said she then stood the matter down to enable Mavundla’s attorneys to go to the court library and get the cases.

When the matter was recalled, Suren Singh, the owner of the law firm, appeared. He said he could not get copies because the librarian wanted him to pay for copies “which he was not willing to do”.

The judge postponed the case again to give Singh and his staff a final opportunity to provide proof of the cases either from the South African Law Reports, All South African Law Reports or from SAFLII.

When Singh appeared before her again on 25 September, he indicated that as an “elderly practitioner” (which, the judge said, she took to possibly meaning technologically challenged), he had some difficulty in obtaining the cases, but had tried his best to do so using Google.

He complained that this clerk had been put under “uncalled for duress” by having to appear in court.

In her judgment, Judge Bezuidenhout described all the cases put up by the attorneys, noting that many did not exist at all, some had incorrect citations and those that did exist had absolutely no bearing on the case she was dealing with.

Singh, she said, had submitted that he should not pay the costs of the two hearings. He said he had a “small firm” and stood by his articled clerk.

“He did not want to admit any wrongdoing or take responsibility for how serious the actions of Ms Pillay and (the clerk) were,” the judge said.

She said Singh had suggested that the advocate for the respondent (the MEC for Department of Cooperative Government and Traditional Affairs) was equally to blame because he too had not checked the citations.

The judge said it was “unclear if he was conceding” that ChatGPT and other AI programs had been used and, if they had, that this was in order.

“It is clear that a court should 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 the clerk) without checking the references,” Judge Bezuidenhout said.

She said she had “serious doubts” about the correctness and truthfulness of the clerk’s contention that she found the citations in law journals and this raised questions over her future legal career.

However, that was an issue to be decided by the LPC.

“An inordinate amount of legal and judicial resources were spent to find the authorities referred to in court,” she said, and presenting fictitious or non-existent cases did not constitute “giving an honest account of the law”.

She said a “brief experiment” of putting just two of the citations into ChatGPT had immediately illustrated the unreliability of it as a source of information and legal research.

Had Pillay checked the authorities before coming to court she would have denounced any reliance on the cases.

“Had whoever signed the supplementary notice of appeal and who was responsible for supervising [the clerk], done the most basic check, the issue would have been discovered even before the document was issued and served. As for [the clerk’s] research, the less said the better. But it unfortunately set in motion a very unfortunate chain of events.”

Judge Bezuidenhout said the applicant (Mavundla) should not be liable for these costs and that Surendra Singh and Associates must pay them from its own coffers.

She dismissed the application for leave to appeal and directed that her judgment be sent to the LPC for possible further action.

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