In Zhang v. Chen 2024 BCSC 285 Ms. Zhang was successful in defending her husband Chen’s application for an order that the parties’ children, who lived with her in West Vancouver, be permitted to travel to China to spend time with their father. The court ruled that Chen’s application be revisited once a section 211 parenting report was completed and that in the meantime, parenting time in British Columbia be granted in accordance with Ms. Zhang’s proposal, and that video parenting time be afforded to Chen.
Following this order, Zhang’s counsel sought special costs against counsel for Chen for the reason that Chen’s Notice of Application contained two non-existent cases that counsel had referenced by accessing ChatGPT, an artificial intelligence program, touted as a research provider, capable of explaining complex legal topics, and providing citations for relevant articles, cases, and precedents, allegedly leading to increased efficiency and a reduction in legal fees for clients.
Unfortunately, for Chen’s counsel, the cases she cited did not exist and Zhang argued that needless time and effort was spent ascertaining the legitimacy of the authorities cited by Chen and that her use of ChatGPT constituted reprehensible conduct.
The facts revealed that Chen’s Notice of Application was delivered to Zhang on December 6, 2023. On December 13, 2023 Zhang wrote to Chen asking for copies of the two cases cited, explaining they could not locate them. Chen wrote back to Zhang apologizing and explained they were looking into the cases cited and advised Zhang of four new cases she would rely on. Zhang insisted that they provide the earlier cited cases and suggested that Chen could not rely on the new cases. Zhang advised the court that they had retained a researcher to find the cases and learned they did not exist.
On the hearing date of December 19, 2023, Chen was represented by an agent on behalf of his counsel and by that time, Chen’s counsel had apologized again and prepared a note for the court and for Zhang, which read, in part:
“I made a serious mistake when preparing a recent Notice of Application for my client, Mr. Wei Chen, by referring to two cases suggested by Chat GTP (an artificial intelligent tool) without verifying the source of information. I had no idea that these two cases could be erroneous…I have taken this opportunity to review the relevant professional codes of conduct and reflected on my action. I will not repeat the same mistake again. I had no intention to mislead the opposing counsel or the court and sincerely apologize for the mistake that I made… I alone made the mistake with respect to the erroneous citations and nobody else in my office was any part of it.”
Although Chen instructed her agent to provide the note to the court and to Zhang, that did not occur. No judge was available, and the matter was adjourned to January 15, 2024.
At the resumption of the hearing, the court determined that Zhang had been the successful party in respect of Chen’s motion, noting that Chen’s application had begun as a without notice, short leave application, with an unfounded assertion by Chen that he was unable to leave China due to immigration issues. Further, Chen was in arrears of child support when he brought his application. Costs were awarded to Zhang.
Next the court considered whether special costs should be ordered against Chen’s counsel personally. Citing Nuttal v. Krekovic 2018 BCCA 341, the court noted that special costs against a lawyer are only appropriate where there has been a serious abuse of the judicial system or dishonest or malicious conduct that is deliberate and that a mere mistake, error in judgment, or even negligence does not warrant such an order.
While counsel for Zhang seemed to suggest that Chen’s counsel’s “mea culpa” was disingenuous, despite her expressions of genuine remorse and embarrassment, the court found that the “fake” cases were withdrawn prior to the hearing and the circumstances were mitigated by “well-sourced” opposing counsel who had a litigation team of three lawyers and an articling student at the hearing, observing there was no chance the two cases would have slipped through. The court found no intent to deceive and accepted counsel’s sincere apology, declining to order special costs while acknowledging the seriousness of the situation.
However, pursuant to Rule 16-1 (30) (c) and (d), the court ordered counsel to be responsible for the extra expense resulting from the inclusion of two fake cases, to be determined by the Registrar of the Court for 2 full hearing days. The section reads:
(30) If the court considers that a party’s lawyer has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault, the court may do any one or more of the following:
(c) order that the lawyer be personally liable for all or part of any costs that his or her client has been ordered to pay to another party;
(d) make any other order that the court considers will further the object of these Supreme Court Family Rules.
Counsel was also ordered to review all her cases before the court to check whether artificial intelligence tools had been used for research purposes and to advise opposing parties and the court immediately, by filing a report within 30 days of the judgment.
The court concluded by observing that artificial intelligence is still no substitute for the professional expertise that is required of lawyers and that the integrity of justice requires no less.
British Columbia Law Society spokesperson, Christine Lam, confirmed to the media that conduct of counsel was being investigated by them. Of note, is that the Law Society in November 2023 released a new practice resource titled “Guidance on Professional Responsibility and Generative AI”, to help lawyers consider the use of AI tools in their legal practice.
This article was first published in LAW360, a publication of LexisNexis Canada
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