If you have paid any attention to the legal issues surrounding the use of artificial intelligence in courtrooms, you probably heard about the first case involving hallucinated legal precedence that occurred in British Columbia. You probably heard about it because you read a story in the news, saw it on your television during the 6:00 PM broadcast or you read a post on LinkedIn or some other social media.
What you don’t hear in those news stories, television broadcasts, and social media posts is the underlying circumstances that occurred in this case.
The case at issue involved a high-conflict family dispute that thad been going on for some time. The parties were each represented by counsel.
For the claimant in a parenting time application, were a team of four lawyers, including the father-son combo, Lorne and Fraser MacLean. Together they run a large and successful family law firm.
Fraser has, by virtue of having had a father who has been practicing in this area for 40 years at the time of the application, been brought up with every advantage in the legal profession. Every example of how to practice. Every opportunity available to him. It should be noted that both MacLeans are caucasian and wealthy and men.
As the BC Supreme Court characterized their representation:
The dispute has involved from the start well-resourced opposing counsel; the parties had prepared volumes of materials for the hearing before me. My sense is that Ms. Zhang had an active legal team on her case. I note that Ms. Zhang throughout the hearing before me had three counsel and an articled student sitting at the counsel table.
Representing the respondent, the father, was a young, racialized, woman. She works at a small family law firm with mostly junior lawyers and one senior associate.
The power imbalance is undeniable.
In this context, and in the midst of aggressive litigation, counsel for the respondent father used artificial intelligence for legal research. Unsurprisingly to those who are aware of the risks of this technology, the AI hallucinated cases and counsel did not verify the citations before relying on them in application materials.
The conduct of course falls short of the ethical obligations of lawyers. But this article is not to criticize the error of counsel. Frankly, that has been done to death.
Rather, it is the conduct that occurred following the MacLeans’ discovery of the hallucinated cases.
Rather than take the simple step of writing to opposing counsel to raise the issue, giving opposing counsel the benefit of the doubt that it was an honest mistake — as was ultimately found by the court — the MacLeans brought the issue to the attention of the court after being aware the hallucinated cases would not be relied upon, but also to the attention of the media.
The result was humiliating and widespread news coverage on the issue. The young, racialized woman was described as leaving the courtroom in tears.
Look, it is unacceptable for a lawyer to use hallucinated cases and to use cases that they did not verify if relying on artificial intelligence. But it is equally, if not more, unacceptable for a lawyer from a “well-resourced” firm with decades of experience to seize upon this as a publicity opportunity.
And yet that is what happened here.
Not only did the MacLeans given numerous television and news interviews about the case and the impropriety of young counsel’s actions, but they have used it ever since as a springboard for the marketing of their firm. Yes, they are marketing their legal services at the expense of a junior lawyer, a racialized woman no less, and an innocent but negligent mistake.
One cannot help but wonder, if the lawyer that used AI and hallucinated cases was, perhaps, an older white man who was simply unfamiliar with technology due to his age… would the actions of the MacLeans have been different?
Even as recently as the time of drafting this article, approximately 16 months after the incident itself the MacLeans are still posting on LinkedIn about their so-called “precedent setting” case. It has been trotted out at every opportunity, including in Fraser MacLean’s nomination as one of the Top 25 Most Influential Lawyers in Canada.
It is one thing to call out unacceptable behaviour in court, but to tar and feather the reputation of a person who is already facing significant adversity because of the very nature and structure of the legal profession, it being white- and male-dominated, goes too far. Even if there was some usefulness in having the discussion about the issue at the time, the usefulness of that discussion has long since lapsed. At this point it just comes off as cruel.
Enough is enough. Let it go.
A skilled lawyer should have more than the errors of another to celebrate as their personal or legal victory. Let’s focus marketing on our accomplishments and not the mistakes of others.
