Ethical and costs considerations of using AI

There have been overseas decisions where the courts have been critical of the use of AI without appropriate checks.

In the recent UK decision of Ayinde v Haringey & Al-Haroun v Qatar National Bank [2025] EWHC 1383, the court considered the conduct of legal practitioners who had used generative AI tools to generate written legal arguments or witness statements in documents submitted to court. The issue was not over the use of AI, but information had been presented to court without the legal practitioner checking the accuracy of the citation or quote used.

The court was concerned with the skill and behaviour of the legal practitioners referred to it.

In Ayinde, a wasted costs order was awarded against counsel and their instructing solicitors for using fake cases in pleadings and they were referred to their respective regulators. In Al-Haroun, a solicitor used and relied on cases obtained by the client which turned out to be fake or incorrect material obtained from artificial intelligence tools and other sources. The solicitor responsible made a self-referral to the regulator and the court also referred him to the regulator.

The decisions raise important questions regarding costs and the ethical obligations of solicitors.

Maxine Evers, Associate Professor in the Faculty of Law at UTS, says the courts have been “very clear that using AI can be misleading.” She says the UK decision and a number of Australian decisions demonstrate “a lack of oversight in preparation and submissions before the court and  … a total disregard of … the lawyer’s role in the administration of justice, to uphold the administration of justice …

“[W]e all know that [at] the end of the day, the advocate … is responsible for the material and the representations that are made to the court,” she says.

Evers points out that the central theme or takeaway from these decisions, whether overseas or Australian, is the impact it has on the standing of lawyers. “[T]he reputation of the profession rests on honesty, frankness, integrity and lawyers not properly using AI or disclosing the use of AI goes against those core principles,” she says.

The conduct rules for both solicitors and barristers have multiple sections relating to obligations in and to the court, as Evers explains. “[T]hey talk about paramount duty to the court. Of course, it’s a common law principle, but also the rules around duty to be honest, to disclose, not to mislead etc,” she says.

Solicitors also owe a duty to the client. In Al-Haroun, although the client was the one who had used AI, Evers points out the “solicitor relied on that and … didn’t fulfil their duty of competence. It really comes back to the honesty and the competence of the lawyer,” she says.

Aside from the ethical considerations, it also raises important questions about costs and whether solicitors should be entitled to charge clients for work completed using AI.

“[H]ow do you charge your client if it’s taking you less time, if it’s relying on less staff? I mean that’s always been an argument around the billable hour with lawyers,” says Evers.

As Evers points out, using incorrect case citations not only creates extra work for the opposing solicitors and counsel, but it also generates more work for the court. This not only raises the question of who should be responsible for the costs of AI, especially where use of fake case citations leads to extra work or wasted costs, but it also raises the broader question of whether the solicitor using AI has complied with their professional obligations.

“Certainly, in the NSW Supreme Court under the Civil Procedure Act, the court has a discretion to order costs, [a] personal costs order against the lawyer for incompetent, unreasonable conduct,” says Evers.

“[T]he court has said this behaviour is of sufficient concern, and this lack of honesty to the court, this lack of competence comes to possible findings of unsatisfactory professional conduct or misconduct, and the matter is then referred to the regulator,” she says.