An Ontario judge called the case 'very unusual' and said he could not recall any comparable matters
A Toronto lawyer is facing criminal contempt of court proceedings after admitting that she lied to the Ontario Superior Court of Justice about not using ChatGPT to prepare filings that included AI-hallucinated case law.
According to a Dec. 4 order, the court referred carriage of the contempt of court proceeding to Ontario’s attorney general in October. The court stated that, from the Crown’s perspective, Jisuh Lee of ML Lawyers initially committed criminal contempt of court by filing and using a factum that contained hallucinated case law. The Crown is arguing that the lawyer’s failure to check her citations constituted “indifference akin to recklessness.”
The Crown is also arguing that Lee compounded her wrongdoing by lying to the court about her conduct.
According to Daniel Escott, a PhD candidate at Osgoode Hall Law School whose research focuses on the intersection of AI, law, and technology, Ko v. Li represents the first instance in Canada where a lawyer has been referred to the attorney general for criminal contempt proceedings related to AI-generated hallucinations in court filings. A spokesperson for Ontario’s attorney general and a Crown lawyer involved in the matter did not immediately respond to Law Times’ inquiry about whether this was the case.
In the court’s order, Justice Frederick Myers also acknowledged the potential precedent-setting nature of the case.
“I have not seen any case law in which a lawyer, owing duties of candour and honour, admits to deliberately misleading a court in a criminal contempt of court proceeding about herself,” Myers wrote. “This is a very unusual case and one that may resonate throughout the administration of justice.”
Myers said the court should consider evidence, cross-examination, and submissions from the Crown and Lee before determining whether to make a contempt finding against Lee.
The case can be traced back to May, when Lee told the court that she had not used ChatGPT to prepare a factum in the estate matter, after the court was unable to find online references to the cases Lee cited. Lee later told the court that she had delegated the preparation of the factum to a student and learned that it had been partially prepared using ChatGPT.
In September, however, after Lee had been notified that the Law Society of Ontario was investigating her conduct in the estate matter, the lawyer sent an unsolicited letter to the court admitting that she had prepared the estate filings on her own with the help of ChatGPT.
Lee said her misrepresentations to the court were “made out of fear of the potential consequences and sheer embarrassment at having to admit my solitary responsibility for this grave lapse in judgment.
“I am deeply contrite for this dishonesty. My actions fell far short of the ethical standards expected of an officer of the court and have caused me immense personal remorse,” Lee wrote in her letter. “I fully acknowledge that misleading the court, even unintentionally at first and then deliberately to mitigate my shame, erodes the integrity of the judicial process.”
In response, Myers asked Lee to demonstrate why she should not be held in contempt for lying to the court. The justice then referred the case to the attorney general. Myers noted that at the end of November, a Crown lawyer said the Crown “intended to appear to take carriage of the contempt proceeding.”
Earlier in December, Lee filed a brief with the court stating that she had attended continuing legal education courses on AI, created a policy on AI use for her office based on recommendations from the LSO, and was waiting for the LSO to disclose the next steps following a recommendation by the investigator in her case.
The lawyer requested that the court refrain from making a contempt finding, citing her cooperation with the LSO investigation, her apology, and the steps she took to remedy the situation. At a case conference, Lee further noted that her conduct in the estate matter did not end up prejudicing anyone in the case, and that she will likely never recover the $80,000 in legal fees that her client owes her.
Myers said he was concerned that Lee “is not recognizing the seriousness of the issues in this proceeding” and noted her reluctance to hire a lawyer for the proceedings.
He appointed a criminal defence lawyer as amicus curiae to advise the court on how to proceed fairly with the contempt of court proceedings.
Lee and counsel for the other parties in the matter did not respond to requests for comment.
Editor's Note: A previous version of this story mistakenly identified Jisuh Lee as Jisuh Li. Law Times regrets this error.
