USING AI DURING YOUR FAMILY LAW MATTER? READ THIS FIRST

We are increasingly seeing clients use AI, particularly Generative AI tools like Large Language Models (LLMs), to review legal advice, interpret documents, generate questions and challenge legal recommendations. We welcome informed and engaged clients. You have every right to understand the advice you receive, the documents you are asked to sign and the decisions you are making. We encourage you to ask questions, seek clarification and be actively involved in your legal matters.

What concerns us is not the use of AI itself (for example, ChatGPT, Claude, Gemini, Grok and Muse), but the risks that arise when its responses are accepted without proper scrutiny.

ON THIS PAGE

AI DOES NOT ALWAYS GET IT RIGHT

AI can produce responses that appear convincing, authoritative and legally sound, but which contain significant factual errors, incorrect interpretations of the law or references to legislation and cases that do not exist.

It may also fail to appreciate the particular circumstances of your matter, the advice already provided or the legal and commercial considerations that have informed a recommendation.

We are increasingly seeing lengthy AI-generated correspondence containing repetitive questions, inaccurate assumptions and legal propositions that are simply incorrect.

THE UNINTENDED IMPACT ON YOUR LEGAL COSTS

One of the less obvious consequences of using AI in legal matters is that it can actually increase, rather than reduce, your legal fees.

When clients provide lengthy AI-generated questions, arguments or document amendments, their lawyer must carefully review that material, identify inaccuracies, revisit matters already addressed and explain why particular suggestions may not be appropriate.

This takes time, and that time is chargeable in accordance with our retainer agreement.

We would much rather spend your legal fees progressing your matter, protecting your interests and achieving the best possible outcome than correcting misinformation generated by an AI platform.

PROTECTING CONFIDENTIAL INFORMATION

When you enter information about your legal matter into an AI platform, you may be sharing highly sensitive personal, financial, commercial or legally privileged information with a third-party provider.

Depending on the platform, its settings and the way information is handled, that information may be stored, retained or used in ways you do not fully appreciate.

Consideration needs to be given to the risk of identifying children or protected information; validating or encouraging unacceptable or illegal behaviours; safety risks if addresses/locations are exposed; sensitive counselling/health details; technology enabled surveillance.

Confidential information includes any information or documents provided by a client as a result of their engagement with a solicitor. Examples include:

(a) letters, emails, contracts, health/employment or other records;

(b) any company or business information which is not in the public domain;

(c) personal information including sensitive information and de-identified information that could reasonably identify an individual;

(d) all negotiations including details of alterations of contractual terms and/or offers made and on what terms.

In both litigation and transactions, you might gain access to information which is confidential to someone else. If so, your right of access is only for the purpose of this matter and you may not take risks with the material’s confidentiality. 

Damages, serious penalties or contempt of court may arise if you release the material, including by allowing an open or insecure AI system to access it.

WHAT “LEGAL PROFESSIONAL PRIVILEGE” MEANS

In some circumstances, disclosure of confidential or privileged material may create risks to its confidentiality or legal professional privilege.

When you talk to your lawyer, or you share documents for the purpose of getting legal advice or preparing for a legal case, those communications are usually meant to stay private. The law often protects them from being forced into the open. This protection is called legal professional privilege (sometimes “client legal privilege”).

Along with the use of AI, some other ways privilege could be waived or third party confidentiality breached include:

(a) Sharing advice and documents with a friend who has been through the same issue;

(b) Posting to internet support forums or social media;

(c) Telling the other side that “my lawyer has said X, so you had better accept my offer” or similar;

(d) Providing documents, making statements, or speaking to the media or other third parties about your matter.

It is essential that you speak to your lawyer before doing any of these things.

If that protection is lost (“waived”), it can:

(a) allow the other side to get access to information you expected to stay private, reveal your plans, case weaknesses, concerns, or key facts;

(b) increase costs if we need to fix the damage.

WHY PUBLIC/FREE AI CAN BE RISKY FOR PRIVACY AND YOUR CASE

Many public or free AI tools are run by third-party companies. If you copy and paste private legal material into them, you may lose control of it.

Risks can include:

(a) Waiving legal professional privilege, discussed above;

(b) Information may be stored somewhere you don’t control, possibly overseas;

(c) Information may be sold or used to train the provider’s or a third party’s AI systems. Even if names and addresses are removed, this kind of use may break privacy rules;

(d) Other people may access it, e.g., if the other side in a litigation matter issues a subpoena (or obtains a court order) that allows them to look at your AI chats, or if the Court Rules require disclosure of these searches;

(e) Information may be kept longer than you expect, even if you delete your chat.

Because it can be hard to know what a particular AI service does with your information, you should not use public/free AI for anything connected to your legal matter.

PAID AI MAY BE SAFER, BUT ONLY IF YOU USE IT CAREFULLY

Paying for an AI service will sometimes give you better privacy controls, but paid does not automatically mean safe. Some paid tools still store what you type, and some settings may allow your content to be used in ways you would not expect.

If you use AI for anything related to your matter, follow these steps:

(a) Talk to us first before taking any such steps;

(b) Do not upload documents from your matter (letters, advice, contracts, ID, bank details, medical reports, court documents);

(c) If you use AI to help draft something, only use small snippets and remove identifying details (names, addresses, dates of birth, reference numbers, account numbers, and anything unique);

(d) Turn on any available privacy options that reduce sharing or re-use of your content (if you don’t understand the settings, don’t proceed). Check these settings after each update.

Keep your account safe: use a strong password and multi-factor authentication (MFA).

MATTERS BEFORE A COURT OR TRIBUNAL

Most courts and tribunals have published guidelines or practice directions regarding the use of AI in matters coming before them. These may be rapidly updated to address emerging issues.

You should be generally aware that:

(a) The use of AI may be prohibited or restricted;

(b) Where certain uses are prohibited, you may be required to make a declaration that you have not used AI in preparing materials submitted to the Court or Tribunal;

(c) If the use of AI is permitted, you may be required to disclose and make declarations about when, and how, AI has been used;

(d) You may be required to make a declaration or attestation that all material submitted has been verified as accurate;

(e) Making a false or misleading statement or declaration or submitting material that contains AI hallucinations or inaccuracies may have serious consequences for you or your matter;

(f) The consequences may include: rulings being made against you, having submissions, material or evidence “struck out” or ruled inadmissible, fines or cost penalties, and other sanctions.

If you use AI without telling us, this may compromise our ability to represent you and may cause us to breach our professional and ethical obligations or duties.

The Federal Circuit and Family Court of Australia (Divisions One and Two) has issued a practice direction about what is permitted by that Court. You can find that practice direction here. 

COULD I BE COMMITTING A CRIMINAL OFFENCE?

Section 114Q of the Family Law Act makes it a criminal offence to print or publish any account of family law proceedings that identifies the parties, witnesses or other associated individuals. Uploading correspondence, documents, disclosure, court orders and the like may have the effect of seeing you in breach of this section of the Act. You should not take those steps or upload any document to AI which relates to a family law matter, without very specific advice about that.

The penalty for breaching this section of the Act is imprisonment for one year.

OUR COMMITMENT TO YOU

We want our clients to feel informed, empowered and confident in the legal advice they receive.

We will always welcome your questions. If something in our advice does not make sense, if you do not understand a document or if you want to explore an alternative approach, please ask us.

You do not need AI to give you permission to question your lawyer. That is an important part of the relationship we have with you.

Equally, we ask that you recognise the distinction between information generated by an AI platform and professional legal advice that has been prepared with an understanding of your circumstances, the applicable law and the consequences of the decisions you make.

Our request is simple: take advice before you use AI in the context of any legal proceedings and approach its output with the same critical thinking you would apply to any other source of information.

WHAT WE ASK OF YOU

Our absolute preference is for you to talk to us directly before considering using AI in the context of your family law matter. That human to human element can often assist in answering any questions or queries.

That will allow:

(a) The opportunity to use accurate information;

(b) Avoid any potential breaches of Section 114Q of the Family Law Act;

(c) Avoid any potential breach of your legal professional privilege;

(d) Limit your exposure to additional costs.

Please tell us if you have used AI in connection with communications with us, including if you used it to:

(a) Look up legal information or “check” advice we gave you;

(b) Summarise letters, emails, or documents;

(c) Draft or rewrite emails/messages to anyone involved in the matter;

(d) Prepare a timeline or summary of events;

(e) Draft statements, notes, or instructions you plan to give us;

(f) Rewrite what happened in your own words.

We need to know in order to manage risks, correct mistakes, and protect your interests.

NAVIGATING THE CHANGING LANDSCAPE TOGETHER

We recognise that AI is here to stay and that its capabilities will continue to evolve. The legal profession is adapting too, and we are committed to understanding and responsibly embracing the opportunities this technology presents.

We are not asking you to stop using AI. We are simply asking you to critically assess what it produces before sending it to us and the resulting impact on you, by using that carriage. 

At a time when the AI landscape is changing almost daily, we felt it was important to communicate openly with you about both the opportunities and the risks.

Our intention is not to discourage curiosity or innovation. It is to protect your interests, your confidential information and the value you receive from the legal services we provide.