By Robert Green
Artificial intelligence has moved from novelty to normality in remarkably little time. Lawyers now use AI-assisted tools to draft correspondence, summarise documents, conduct preliminary research, and manage increasing volumes of information. Whether embraced enthusiastically or approached cautiously, AI is already becoming part of everyday legal practice.
The profession’s response has been less settled. Courts across Australia have adopted different approaches to AI-generated material, regulators are still developing guidance, and practitioners are often left to navigate evolving expectations without a clear understanding of what competent AI use looks like in practice.
Recent cases involving fabricated authorities, inaccurate legal research, and unverified AI-generated content have highlighted the risks of this uncertainty. Most recently, in Jenson & Lockridge (No 2) [2026] FedCFamC1A 44, the Federal Circuit and Family Court criticised the use of AI-generated material that misrepresented aspects of the proceedings, dismissed the appeal, and ordered costs of $1,540 against the appellant. These incidents are frequently described as failures of technology. More accurately, they are failures of professional competence. The problem is rarely that AI produced an incorrect answer; it is that a practitioner relied upon that answer without adequate verification or understanding.
This distinction is important because it reframes the debate. The legal profession does not face a technology problem so much as a training problem. Duties of competence, candour, confidentiality, and professional responsibility remain unchanged. What has changed is the environment in which those duties must now be exercised.
If AI is to remain part of legal practice, competence in its responsible use must become part of professional practice. The question is no longer whether lawyers will use AI. The question is whether the profession will equip them to use it properly. Continuing professional development may prove to be the most effective place to begin that conversation.
The profession has a competence problem
Every generation of lawyers encounters a technological shift that changes the way legal work is performed. From electronic legal research and email to cloud-based document management and virtual hearings, the profession has repeatedly adapted to new tools while maintaining the same fundamental professional obligations.
AI presents a different challenge. Unlike previous technologies, AI does not simply store, transmit, or organise information. It produces content that appears authoritative, persuasive, and often convincing. It can draft advice, summarise judgments, generate legal arguments, and answer complex legal questions in seconds. For busy practitioners facing increasing demands on time and resources, the attraction is obvious.
The risk is equally obvious.
Across Australia and internationally, courts have encountered examples of legal submissions containing fictitious authorities, inaccurate legal analysis, and material generated by AI without appropriate verification. Far from being isolated incidents, these cases are now occurring with sufficient frequency that legal academic Damien Charlotin maintains a dedicated database tracking AI-related judicial decisions from around the world, including a growing number from Australian courts and tribunals. The consequences have included costs orders, disciplinary referrals, and significant judicial criticism.
These incidents have attracted attention not because they demonstrate a failure of technology, but because they demonstrate a failure of professional judgment. The problem is rarely that AI produced an incorrect answer; it is that a practitioner relied upon that answer without sufficient verification.
AI does not owe duties to the court. It is not admitted to practice. It cannot be disciplined, sanctioned, or held accountable for the consequences of its output. Responsibility remains with the practitioner who chooses to use the technology and, more importantly, who chooses to rely upon it.
That principle is neither new nor controversial. Australian lawyers have always been required to exercise competence, maintain professional independence, protect confidential information, and act with candour toward the court. The emergence of AI has not altered those obligations. What it has done is create a new environment in which those obligations can be tested more frequently, and in more subtle ways, than ever before.
The challenge is that many practitioners are now encountering AI in practice without any formal training in how these systems operate, where their limitations lie, or how their outputs should be verified. Lawyers are expected to identify hallucinated authorities, recognise fabricated citations, understand confidentiality risks, and exercise appropriate professional judgment, often without having received any structured education on the technology itself.
This creates an uncomfortable gap between professional expectations and professional preparation. Courts increasingly expect lawyers to understand the risks associated with AI-assisted work. Clients increasingly expect lawyers to use technology efficiently. Yet there is no nationally consistent understanding of what competent AI use actually looks like in legal practice.
The profession’s challenge is therefore not whether AI should be used, but whether lawyers are being adequately prepared to use it responsibly. Before competence can be measured, enforced, or regulated, it must first be understood.
A national profession with fragmented expectations
If competence is the foundation of professional responsibility, a simple question follows: what does competent AI use actually look like? At present, there is no clear national answer.
Across Australia, courts, regulators, and professional bodies have recognised both the opportunities and risks associated with AI. What has emerged, however, is not a unified approach but a patchwork of guidance, practice directions, and developing expectations.
New South Wales has adopted one of the most prescriptive approaches, introducing formal requirements governing the use of AI-generated material in court proceedings and reinforcing the obligation of human verification. Other jurisdictions have favoured broader principles-based guidance, reminding practitioners that existing duties of competence, candour, and professional responsibility continue to apply regardless of the technology used.
Western Australia currently sits somewhere between these positions. While concerns surrounding AI misuse have been acknowledged, the profession remains in a period of consultation, observation, and gradual adaptation. Similar approaches can be seen in other Australian jurisdictions, where guidance continues to evolve alongside the technology itself.
The Federal Court has also entered the conversation, issuing guidance designed to ensure that AI-assisted work remains subject to professional judgment and verification. Yet even with these developments, expectations remain far from uniform.
For practitioners, this creates an unusual challenge. Australian lawyers operate within a profession that is largely governed by common ethical principles and professional obligations. Yet when it comes to AI, the practical expectations surrounding verification, disclosure, and acceptable use can differ depending on the jurisdiction in which a matter is being conducted.
This is not necessarily a criticism of the courts or regulators. AI has developed at a pace few anticipated, and institutions have responded in different ways to emerging risks. However, the consequence is a profession attempting to navigate a rapidly changing technology without a shared understanding of what competence looks like in practice.
The question is no longer whether AI should be used within legal practice. It is how lawyers can develop the knowledge, judgment, and skills necessary to use it responsibly. That challenge may ultimately be less about regulation and more about education.
Could existing CPD requirements provide the answer?
The discussion surrounding AI often begins with the assumption that the profession requires a new category of continuing professional development dedicated exclusively to AI. That may not be the case.
The legal profession already possesses a mature framework for maintaining professional competence. CPD requirements exist because legal practice does not stand still. Laws change, technologies evolve, client expectations shift, and professional obligations develop over time. CPD has long provided the mechanism through which practitioners adapt to those changes while maintaining professional standards.
Viewed through that lens, AI is not a standalone discipline. It is an issue that increasingly intersects with the very areas of professional development lawyers are already expected to undertake.
The ethical use of AI sits squarely within ethics and professional responsibility. Questions concerning verification, confidentiality, disclosure, supervision, conflicts of interest, and duties owed to the court are not technology issues at all. They are ethical issues. AI simply provides a new context in which those obligations must be exercised.
Similarly, the implementation of AI within legal workplaces raises important questions of practice management and business skills. Law firms and legal departments are increasingly considering how AI tools should be adopted, supervised, governed, and monitored. Decisions concerning risk management, information security, client confidentiality, workplace policies, and organisational oversight all fall comfortably within established concepts of professional practice management.
Professional skills provide a further connection. Effective use of AI requires lawyers to exercise critical thinking, professional judgment, legal research skills, drafting ability, and analytical reasoning. The most significant failures associated with AI in legal practice have not occurred because lawyers lacked technical expertise. They have occurred because fundamental professional skills such as verification, scrutiny, and independent judgment were not adequately applied.
Even substantive law is beginning to intersect with the AI conversation. Privacy obligations, intellectual property rights, confidentiality requirements, evidence, consumer protection, administrative law, and emerging regulatory frameworks increasingly raise questions concerning the lawful use of AI. As the technology becomes more prevalent, lawyers across a range of practice areas will inevitably encounter AI-related legal issues within their ordinary work.
This suggests that the profession’s challenge may not be the creation of a new CPD category, but the integration of AI-related competency across existing categories. Rather than treating AI as a specialist topic, professional development programs could focus on how emerging technologies interact with the ethical obligations, professional skills, business practices, and substantive legal knowledge that practitioners are already expected to maintain.
A structured framework could support this approach. Foundational education might focus on ethical obligations and professional responsibility. More advanced programs could explore practical applications within legal work, verification processes, confidentiality considerations, and organisational governance. Senior practitioners and practice leaders could undertake training focused on supervision, risk management, and firm-wide implementation. The emphasis would remain not on the technology itself, but on the professional obligations that surround its use.
This approach offers an important advantage. Technologies will continue to evolve. Today’s AI systems will inevitably be replaced by more sophisticated tools tomorrow. Professional obligations, however, remain remarkably constant. By embedding discussions of AI within existing CPD frameworks, the profession can focus on the enduring principles of competence, judgment, accountability, and ethical responsibility rather than attempting to regulate individual technologies as they emerge.
The question, therefore, may not be whether lawyers need AI training. It may be whether existing professional development frameworks are evolving quickly enough to ensure that lawyers can continue to meet the standards of competence and professional responsibility that the public, the courts, and the profession rightly expect.
Any future framework would likely need to recognise differing levels of professional responsibility. A newly admitted practitioner, an experienced solicitor, a supervising partner, and a practice leader face different risks and obligations when deploying emerging technologies. For that reason, any competency model should be scalable, proportionate, and aligned to existing professional development requirements.
The objective should not be to create technology specialists. Rather, it should be to ensure that legal professionals possess the knowledge, judgment, and ethical awareness necessary to apply enduring professional obligations within an evolving technological environment. The future challenge for the profession is not determining whether AI has a place in legal practice. It is ensuring that professional competence evolves at the same pace as the technology itself.
The next evolution of professional competence
The legal profession has never been defined by the tools it uses. It has been defined by the standards it maintains while using them.
AI undoubtedly presents new challenges. It raises questions about verification, confidentiality, supervision, accountability, and professional judgment. Yet none of these issues sit outside the profession’s existing ethical framework. They are, at their core, questions of competence and professional responsibility.
The challenge for Australian lawyers is therefore not determining whether AI should form part of legal practice. That question has largely been answered by the pace of technological adoption across the profession. The more pressing question is whether practitioners are being equipped with the knowledge and skills necessary to use these tools consistently with their professional obligations.
As courts, regulators, and professional bodies continue to develop their responses to emerging technologies, continuing professional development provides a practical and familiar pathway through which the profession can adapt. Not because lawyers need to become technology experts, but because professional competence has always evolved alongside professional practice.
AI is unlikely to remain a specialist issue confined to technology lawyers or large commercial firms. Its influence is already being felt across legal research, drafting, administration, client service, and professional decision-making. As that influence grows, so too will the expectation that practitioners understand both the opportunities and the risks associated with its use.
The profession has successfully navigated significant change before. It has adapted to new legislation, new technologies, new methods of practice, and new client expectations while preserving the principles that underpin public confidence in the administration of justice. AI presents the next chapter in that story.
Ultimately, the question is not whether AI belongs in legal practice. It is whether professional competence is evolving quickly enough to ensure that its use remains ethical, accountable, and consistent with the standards expected of the legal profession. If competence remains the cornerstone of professional responsibility, then the responsible use of AI may simply represent the next evolution of that enduring obligation.
