New Rules for Lawyers Using AI: A Guide to the NSW Supreme Court’s Practice Note

Generative Artificial Intelligence (AI) is increasingly part of daily life, from writing tools to chatbots that can answer questions or generate detailed content. As this technology finds its way into more professional settings, including law, Courts are beginning to set boundaries. In late 2024, the Supreme Court of New South Wales released formal guidance on how generative AI can be used in court matters. This guidance is called Practice Note SC Gen 23, and it officially took effect on 3 February 2025.

https://supremecourt.nsw.gov.au/documents/Practice-and-Procedure/Practice-Notes/general/current/PN_SC_Gen_23.pdf

This post explains what the Practice Note means, why it was introduced, and how it applies to legal professionals, expert witnesses, and Judges across NSW.

What is Generative AI and When is it Used in Law?

Generative AI refers to programs that can create new content, such as text, images or sound, based on patterns learned from large amount of data. Tools like ChatGPT are examples of general-purpose AI, while platforms like Lexis+ AI or Harvey AI are designed specifically for lawyers and legal research.

In legal practice, these tools might be used to:

• Draft or summarise documents
• Organise case information
• Review large volumes of evidence
• Help with legal research.

What Documents are Affected?

The Practice Note outlines how different types of legal documents may or may not involve generative AI:

Affidavits, Witness Statements, and Character References

These documents involve personal statements of evidence. AI must not be used to write, reword or edit these materials. They must be written in the person’s own words. However, AI can be used in the drafting process, for example, to format notes or assist with background organisation, as long as the final content is original. A statement must also be included confirming that no part of the final content was generated by AI.

Expert Reports

These are written by professionals who give their opinion in a case. AI cannot be used to draft these reports unless the Court gives permission first. If permission is granted, the expert must:

• Explain how the AI will be used and what program is being used (including version and settings)
• Describe the benefits of using AI
• List any documents submitted to the AI tool
• Include full details in the final report about what AI was used, how it was used (including prompts), and any professional standards that apply.

Written Submissions and Supporting Documents

Generative AI may be used to help prepare routine documents, such as summaries, indexed, witness lists and court briefs. However, any legal citations or references generated by AI must be manually checked by the lawyer to ensure they are real, accurate and relevant. Lawyers cannot rely on AI-generated material without proper verification.

However, Practice Note SC Gen 23 makes clear that not all technology is regulated, with common tools such as spelling and grammar checkers, document formatting software, or basic search engines, are not affected.

Why the Court Introduced Rules Around AI Use

The Court introduced this guidance to address risks that come with relying on generative AI in legal work. Lawyers are expected to understand these risks which include:

• Hallucinations: AI can generate information that is incorrect or misleading
• Outdated: AI tools may rely on old or incomplete sources
• Bias: Results by AI may reflect built-in social or legal biases from the data that it was trained on
• Confidentiality: Entering private or sensitive information into AI systems may risk exposure to third parties
• Copyright: AI can reproduce material without proper attribute, creating issues with copyright.

Because of these risks, lawyers must not input confidential or legally sensitive material, such as details covered by court orders, subpoenas, or non-public evidence into AI systems, unless they are sure the data will remain secure and confined to the legal proceeding. Lawyers are still bound by confidentiality rules such as the common law rule of a Harman undertaking.

Rules for Judges Using AI

The Practice Note also includes guidance for Judges across NSW. Judges should not use AI to:

• Write reasons for their decisions
• Analyse evidence
• Edit or proofread draft documents.

Judgments may only use AI tools for limited research purposes, and even then, with full awareness that the information may be unreliable or incomplete. Any information gathered through AI must be carefully checked before being relied on.

Why This Matters

The Supreme Court’s new rules aim to balance advancing technology with fairness. While generative AI can improve efficiency, the courts are clear, technology must never replace human judgement, integrity or professional responsibility. Lawyers must remain accountable for their work, and court decisions must always be grounded in real evidence and sound legal reasoning.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

Photo by Matheus Bertelli