Family law is a very complex area of law and we are dealing with highly sensitive issues concerning family relationships.If one traditionally looks at the skills required to be a good family lawyer they would probably include (1) excellent communication skills, (2) good EQ and interpersonal skills, (3) empathy and (4) conflict resolution and negotiation skills. These are skills that do not immediately lend themselves to being assisted by AI.
However, there are also several other skills that do, such as drafting and research skills. AI tools can automate repetitive tasks like document review, case analysis, and research, allowing family law professionals to focus on more complex and strategic aspects of their cases. This can lead to increased efficiency and productivity. Automation and AI tools can help reduce overhead costs associated with legal research, document preparation, and administrative tasks, making legal services more affordable for clients.
Hong Kong Law Society: Position Paper on The Impact of Artificial Intelligence on the Legal Profession
2024 was an important year with the Hong Kong Law Society publishing a Position Paper on the Impact of AI on the Legal Profession. The paper highlights that a tipping point had been reached and acknowledges that the profession needs to get on board with how AI is going to affect us. The Law Society has committed to a roadmap which consists of a three-phased approach in helping its members to navigate this transformative landscape.
The paper makes it clear that it is the responsibility of solicitors to have a good understanding of new technologies, and it is not acceptable to take a “head in the sand” approach. The paper states that “Keeping up to speed on technology is thus becoming an additional component of competence required of a solicitor” and that if a solicitor is going to reply on new technologies “He must know the capabilities and limitations of the tools and consider the risks and benefits of the products generated by those tools in the context of the specific case that he is working on”. The Law Society is telling us loud and clear that we must educate ourselves to use this new technology as part and parcel of our work as legal professionals.
Judges and Judicial Officers and Support Staff: Guidelines on the Use of Generative Artificial Intelligence
In July 2024 Guidelines were published with the intention of bringing Hong Kong in line with other jurisdictions such as Canada, England, New Zealand and China. In response to news in other jurisdictions about AI being used by Judges, lawyers and litigants in person, the Guidelines highlight are that the Judiciary (1) must not delegate their judicial functions and (2) must be aware of the use of Generative AI by Court Users. The Guidelines set out 4 potential uses of AI as follows:
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- Summarising information
- Writing of presentations
- Legal translation
- Administrative tasks
Family Law cases highlighting potential issues with AI
So far, we do not have any Hong Kong reported family law cases but it is only a matter of time and the authorities from other jurisdictions concerning the misuse of AI in family law cases highlight issues that family lawyers must stay vigilant about.
England & Wales
The case of Harber v HMRC [2023] UKFTT 1007 highlights the potential dangers of using generative AI inappropriately. Mrs Harber was a litigant in person, and she used generative AI to create summaries of nine cases which she submitted to the FTT in an appeal against a penalty for failure to notify a CGT liability on the sale of a rented property. Following checks carried out by counsel for HMRC it turned out that none of the authorities were genuine. Although the FTT accepted that the mistake was innocent, it issued a stern warning of the dangers of litigants using AI hallucinations in litigation.
Although Mrs Harber was given the benefit of the doubt lawyers will be held to a higher standard by the tribunals and courts and it is important, therefore, that the uses (and limitations) of such AI tools are properly understood, including the use of clear and specific instructions and prompts to ensure appropriate responses from the AI.
Another reported case serves as a salutary warning to family lawyers involved in financial proceedings not to accept information at face value. In X v Y [2022] EWFC 95 the husband was a technology entrepreneur and had persuaded his wife and family to move to London in 2014. He told her that a company wished to buy his business for GB£80,000,000 and produced a draft sale contract at that price, as well as a bank statement purporting to show that the buyer had made a down-payment of GB£8,000,000.
On the basis of those documents, the wife agreed to move and subsequently, in 2018 the husband ceased paying the rent on the family home and the children’s school fees. By the time of the hearing the wife was dependent on benefits and the children (now 15 and 18) had serious medical problems, worsened by stress, and were no longer in any education.
The husband maintained in the proceedings that the 2014 documents were genuine but that the deal had unravelled. However, the wife had obtained from the bank a genuine bank statement for the account from the period, which did not show the transaction. HHJ Hess found that the husband had dishonestly and falsely manufactured the presented 2014 bank statements to mislead the wife into moving to London.
In a post-script to his judgment HHJ Hess explained his decision to publish it on his wish to draw wider attention to the ability of dishonest parties to manufacture bank statements (and other documents) which, for all practical purposes, look genuine, but which are in reality falsified for ulterior moves.
The role of the lawyer in issues concerning falsified documents was highlighted in the case of Filatona Trading Limited & Anor v Quinn Emanuel Urquhart & Sullivan [2024] EWHC 2573. The decision is a rare example of the Court granting Norwich Pharmacal relief against a firm of solicitors who were (unwittingly) caught up in the forgery of evidence.
In the case, the Deripaska Parties sought an order that the law firm disclose the identity of an apparently well-known London based Business Intelligence Consultancy which obtained a Russian language report, from an alleged wrongdoer which is said by the Deripaska Parties to be a forgery. The report was passed on to the law firm and subsequently used in proceedings. Mr. Justice Calver ordered the firm to disclose the identity of the “middleman” and rejected the argument that the law firm had been a mere onlooker or witness, but were actively involved in the verification and deployment of evidence in proceedings – albeit without knowledge of the wrong-doing.
Australia
In the recent case of Handa & Mallick (2024) FedCFamC2F 957 Judge Amanda Humphreys of the Federal Circuit and Family Court of Australia (Division 2) dealt with an enforcement issue. The husband’s lawyer provided a list of authorities none of which could be verified. Her Honour permitted the lawyer time to file a submission to show cause why he should not be referred to the Legal Services Commissioner.
Limitations of AI in replacing Family Lawyers
While AI can enhance certain aspects of legal practice, it cannot replace the essential human qualities that family lawyers bring to their work. AI lacks emotional intelligence and the ability to empathize, which are crucial in navigating the complex and often painful issues that arise in family law.
Decision-making in family law often requires nuanced judgment, considering unique personal circumstances and the best interests of children. AI – driven by algorithms and historical data – may not adequately evaluate these complexities. Furthermore, effective advocacy and negotiation require interpersonal communication skills that at the current stage AI cannot simply replicate or substitute.
Lawyers are bound by ethical considerations that extend beyond legal advice, making human judgment indispensable when dealing with family law issues.
Final thoughts
The integration of AI into family law presents significant opportunities for enhancing efficiency and access to justice in the Hong Kong Family Court. As the overall legal market continues to adopt AI technologies, it is essential for family lawyers to become familiar with the strengths and limitations of AI to allow us to reap its potential benefits.
Author: Caroline McNally