ChatGPT: Barrister did not check citation
A barrister who used ChatGPT to draft grounds of appeal for the Upper Tribunal (UT) that included a fake case reference, and then failed to admit it, has been referred to the Bar Standards Board (BSB).
UT Judge Lindsley, sitting with Mr Justice Dove, said Muhammad Mujeebur Rahman had “attempted to mislead the tribunal”, in breach of his regulatory obligations.
Following the guidance issued in Ayinde in June, however, the UT said it would not be appropriate to refer the barrister to the police or initiate contempt proceedings, because he had not acted deliberately.
“This is because we find that Mr Rahman did not know that AI large language models, and ChatGPT in particular, were capable of producing false authorities.”
His grounds of appeal in the immigration matter argued that the First-tier Tribunal “placed undue weight on delay in isolation, contrary to Y (China) [2010] EWCA Civ 116”.
Permission was granted on limited grounds, including that undue weight had been placed on delay. But the case did not exist.
At the appeal hearing, the judge asked Mr Rahman to take him to the relevant paragraph of Y (China) as the citation was actually for another case, YH (Iraq), which was not related to delay.
Mr Rahman twice said he had meant a different case, but neither was relevant either. The panel provided by Mr Rahman with a copy of Ayinde and asked him to consider his position over lunch.
After lunch, Mr Rahman said he had undertaken ChatGPT research during the break and the citation for Y (China) was correct, and it was a decision made by Pill and Sullivan LJJ and Sir Paul Kennedy. The panel gave him a deadline to provide a copy of it or, if he could not, explain what had happened.
The panel then started the next case, during which Mr Rahman provided the tribunal clerk with a nine-page print out from the internet containing misleading statements, including references to the fictitious Y (China) case with the citation for YH (Iraq). There was no mention of the key case on delay.
Mr Rahman wrote to the Upper Tribunal by the deadline, stating that he had meant to cite YH (Iraq) and apologising for his failure to do so properly. He blamed this on having suffered from “acute illness” before drafting the grounds.
He also argued that the UT should not penalise him for this error as he had a wife and four children depending on him.
The UT ordered a Hamid hearing – the court’s inherent power to enforce duties that lawyers owe to it – at which Mr Rahman finally accepted that he had used ChatGPT to draft the grounds of appeal and to create the document he handed up via the clerk, without checking the citations from a reputable source of legal information, as required by Ayinde.
He said he did this because he had returned unwell from Bangladesh two days before the hearing and then had felt under time pressure in the lunch break.
“He argues that he was misled by the search engine and is thus also a victim,” Judge Lindsley observed.
Mr Rahman added that he had since undertaken further training on immigration law which included a presentation on AI and the Ayinde case. He apologised for his conduct.
The UT said health and tiredness were not a valid excuse. “If unwell counsel must refuse work and where they are due to appear before the Upper Tribunal they must inform the tribunal at the earliest possible time…
“Taking unprofessional short-cuts which will very likely mislead the tribunal is never excusable for these or any other reasons.”
Judge Lindsley said Mr Rahman’s changing positions showed that he “directly attempted to mislead the tribunal through reliance on Y (China), and has only made a full admission of this fact in his third explanation to the Upper Tribunal.
“He has not therefore acted with integrity and honesty in dealing with this issue, as well as having attempted to mislead the tribunal in the grounds through the use of an AI generated fake authority.”
She added that the UT had already referred Mr Rahman to the BSB at the start of this year over concerns that he was conducting litigation without being authorised to do so in another appeal and “also on the basis that there were concerns that he lacked basic professional competence”.
This case too raised questions about Mr Rahman’s authorisation to act, as it was not clear who had instructed him.
“We trust the BSB will consider this referral, along with our previous referral in relation to Mr Rahman, in a timely fashion due to the gravity of the matter raised,” the judge concluded.
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