The practice note does not prohibit the use of generative AI within the legal profession; rather, it clarifies that AI can “assist legal practitioners and unrepresented parties with various tasks”.

Instead, it outlines acceptance practices and establishes clear obligations regarding using generative AI (GenAI) within legal proceedings. This includes:

• AI must not be used to generate affidavits, witness statements, or character references, and these documents must disclose that GenAI was not used in developing their content.

• GenAI may be used to prepare writing submissions or skeleton arguments, but the author must verify that all citations, legal authorities, care references and legislative materials are accurate, exist, and are relevant.

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• Any material subject to non-publication or suppression orders, the implied (Harman) undertaking, materials produced under subpoena, or any other statutory prohibition against publication must not be ingested into a generative AI program.

Developed in consultation with the NSW Bar Association and the Law Society of NSW, the practice note is scheduled to come into effect on 3 February 2025, aligning with the commencement of the 2025 law term.

This schedule date also coincides with the anticipated amendments to the Uniform Civil Procedure Rules, which the Chief Justice intends to bring into effect.”

In response to the announcement of the Supreme Court Practice Note SC Gen 23, Lawyers Weekly spoke with three barristers to examine the potential impact of AI within the legal profession and the necessity and effectiveness of the newly established guidelines.

Temple Saville, from the Victorian Bar and a finalist for the Barrister of the Year Award at the Australian Law Awards 2024, approaches the integration of AI in the legal profession with considerable scepticism.

She articulates a deep concern regarding its application, labelling it as “inappropriate” and highlighting the potential risks it poses to the integrity and nuances of legal practice.

“In my view, the use of AI for generating content of affidavits, witness statements, and character references is inappropriate and [is] not something the profession should be participating in.

“This behaviour demonstrates an inherent lack of understanding or regard for the Evidence Act and [the] trial process generally,” Saville said.

“I can say without doubt, I would not want to be briefed in a trial where witness statements were AI generated … What could possibly go wrong with that? Practice Note SC Gen 23 should be welcomed in that regard.”

However, Saville articulated her recognition of the value of AI in relevant legal content and emphasised that the legal profession should embrace such applications.

“AI does allow for efficiency when used appropriately, such as, for administrative tasks or chronology preparation. Where appropriate, AI is something which should be embraced moving forward by both the courts and the profession,” Saville said.

Sharon Kermath, from Svenson Barristers and a finalist for the Barrister of the Year Award at the Australian Law Awards for the past six years, attains a more optimistic perspective regarding the integration of AI within the legal profession.

She expressed her insights regarding the potential roles that AI may occupy within the field of legal practice while also recognising the significant concerns that AI could raise in various aspects of the domain.

“As the legal profession continues to grow in technology, in my opinion, generative artificial intelligence (GenAI), may improve the efficiency and quality of legal services, enhancing outcomes for clients and allowing lawyers to focus more on client relationships.

“I understand that there are important concerns regarding the application of GenAI in certain legal contexts,” Kermath said.

She explained that the specific inclusions outlined in the practice note are intended to ensure that sensitive documents are grounded in personal knowledge and expertise rather than relying on AI-generated content.

“The recent NSW Supreme Court Practice Note SC Gen 23, specifically clause 10, prohibits the use of GenAI to draft affidavits, witness statements, and other evidentiary materials. This restriction is based on the principle that such documents should reflect the personal knowledge of the individuals involved, not AI-generated content,” Kermath said.

“I believe in my opinion that courts and parties are made aware of its use in certain documents, as GenAl content may not always be secure, accurate, or reflective of a person’s genuine knowledge.”

Kermath acknowledged the importance of the practice note, highlighting how it serves as a vital tool for fostering transparency on how AI can be used within the profession.

“By disclosing the use of GenAI, we can ensure fairness and maintain the credibility of the legal process,” Kermath said.

Elarya George, from Victorian Bar and a finalist for the Barrister of the Year Award at the Australian Law Awards 2024, emphasised that the practice note doesn’t prohibit the use of AI but instead aims to ensure that the rapid advancement of this technology does not compromise the integrity of the justice system.

“AI has not been fully banned from the court of NSW but has been restricted in how it can be used. This restriction allows for the law to maintain its integrity,” George said.

She articulated that AI can be a valuable asset for conducting legal research; however, it is imperative for practitioners to verify the information generated by these tools.

“The advocate or self-represented litigant can use AI to assist them with research. However, they should verify the information that is being relied on to assist the court [in] determining the matter,” she said.

“With or without AI, a legal advocate was always required to research and verify their client’s instructions, especially if it is likely that those instructions are unlikely to be accepted by [the] court.”

Brett McGrath, the president of the Law Society of NSW, has publicly welcomed the Supreme Court’s new practice note, characterising it as a “historic step by the court” in addressing the integration of AI within the profession.

“GenAI presents both challenges and opportunities, and Supreme Court Practice Note SC GEN 23 provides a clear expression of lawyers’ obligations to the court, including a requirement for legal practitioners to be aware of the risks and shortcomings of the GenAI tool they are using,” McGrath said.

“The obligations imposed by the practice note will help protect litigants, the broader community and the justice system itself from the limitations of AI tech. These include the risk of ‘hallucinating’ fictitious case citations in court submissions and the contamination of witness statements with material not properly in evidence.”