Verify and Disclose AI Use – Requirements from the Federal Court
Introduction
The integration of Artificial Intelligence (AI) into legal practice has revolutionized various aspects, from legal research to drafting documents. However, this technological advancement has introduced challenges, particularly concerning the accuracy and transparency of AI-generated content in legal submissions. The Federal Court of Canada has addressed these challenges by mandating the disclosure of AI usage in court filings. This blog post delves into the Federal Court's requirements, their implications for legal professionals, and best practices for compliance.
The Federal Court's Directive on AI Disclosure
In December 2023, the Federal Court of Canada issued a Notice to the Parties and the Profession regarding the use of AI in court proceedings. This directive requires parties and counsel to inform the Court and other parties if they have used AI to create or generate new content in preparing a document filed with the Court. The disclosure must be made in the first paragraph of the document, stating that AI was used to create or generate the content.
Rationale Behind the Directive
The Court's decision to mandate AI disclosure stems from concerns over the reliability of AI-generated content. Instances of AI "hallucinations," where AI tools produce non-existent or inaccurate information, have raised questions about the integrity of legal submissions. By requiring disclosure, the Court aims to:
- **Ensure Transparency:**Parties must openly acknowledge the use of AI in their submissions. -**Maintain Accuracy:**Verification of AI-generated content by human professionals is emphasized to uphold the quality of legal documents. -**Preserve Trust:**Transparency in AI usage helps maintain public confidence in the judicial process.
Case Study: Wael Mostafa Aly Hussein et al. v. The Minister of Immigration, Refugees and Citizenship
A pertinent example illustrating the Court's directive is the case of Wael Mostafa Aly Hussein et al. v. The Minister of Immigration, Refugees and Citizenship (2025 FC 1060). In this case, the Applicants' counsel utilized Visto.ai, an AI legal research tool, to prepare submissions. However, the counsel failed to disclose the use of AI until after multiple directions from the Court. Additionally, the counsel did not independently verify the citations provided by the AI tool, leading to the inclusion of non-existent cases in the submissions.
Associate Judge Catherine Moore criticized the lack of disclosure and verification, stating:
"The use of generative artificial intelligence is increasingly common and a perfectly valid tool for counsel to use; however, in this Court, its use must be declared and as a matter of both practice, good sense and professionalism, its output must be verified by a human. The Court cannot be expected to spend time hunting for cases which do not exist or considering erroneous propositions of law."
This case underscores the importance of adhering to the Court's directive on AI disclosure and verification.
Implications for Legal Professionals
The Federal Court's mandate has significant implications for legal practitioners:
Ethical Considerations
-**Duty of Candor:**Lawyers are ethically obligated to be truthful and transparent in their dealings with the Court. Concealing the use of AI can be viewed as a breach of this duty.
-**Professional Responsibility:**Ensuring the accuracy of all content, including AI-generated material, is a fundamental aspect of legal practice.
Practical Challenges
-**Verification Processes:**Legal professionals must implement robust procedures to verify AI-generated content, which may require additional time and resources.
-**Training and Familiarization:**Lawyers need to stay informed about AI tools and their functionalities to effectively integrate them into their practice while ensuring compliance with legal standards.
Best Practices for Compliance
To align with the Federal Court's requirements, legal professionals should consider the following best practices:
1. Implement Disclosure Protocols
-**Clear Declaration:**Include a statement in the first paragraph of court filings indicating the use of AI in preparing the document.
-**Specific Identification:**Specify the AI tool used and the manner in which it was utilized in the preparation of the document.
2. Establish Verification Mechanisms
-**Human Oversight:**Ensure that all AI-generated content is reviewed and verified by qualified legal professionals before submission.
-**Cross-Referencing:**Compare AI-generated citations and information with authoritative legal sources to confirm accuracy.
3. Educate and Train Staff
-**Continuous Learning:**Provide ongoing education on AI tools, their capabilities, and limitations to all team members involved in document preparation.
-**Ethical Training:**Reinforce the ethical obligations related to AI usage in legal practice.
4. Document AI Usage
-**Maintain Records:**Keep detailed records of AI tools used, the extent of their application, and the verification steps undertaken.
-Audit Trails: Implement systems to track and audit the use of AI in document preparation to ensure compliance and accountability.
Conclusion
The Federal Court of Canada's directive on disclosing AI usage in legal submissions represents a significant step towards maintaining the integrity and transparency of the judicial process in the age of artificial intelligence. Legal professionals must embrace this change by adopting clear disclosure practices, rigorous verification processes, and continuous education to uphold the standards of the legal profession. By doing so, they not only comply with the Court's requirements but also contribute to the responsible and ethical integration of AI in legal practice.
Further Reading
For more insights on AI usage in legal proceedings and related ethical considerations, consider exploring the following resources:
By staying informed and adhering to these guidelines, legal professionals can navigate the evolving landscape of AI in law with confidence and integrity.
