By: Abarna Kamalakumaran

Redefining Professional Responsibility in the Age of AI

The Zeng v. Chen case sits at the intersection of technological change and evolving legal ethics. A lawyer’s use of ChatGPT to insert fabricated cases into court materials, however unintentional, raised not only questions about competence and diligence, but also deeper reflections on what it means to be a responsible legal professional today.

For a new generation of lawyers, the traditional narrative of professional responsibility centered solely on zealous advocacy, long hours, and unwavering client loyalty no longer suffices. Emerging lawyers are increasingly committed to practices that align with broader social responsibility, transparency, and personal sustainability. The mistake in Zeng v. Chen wasn’t merely a failure of legal research – it revealed the ethical challenges lawyers face in a digital age, where innovation must be balanced with care, and where shortcuts can have far-reaching consequences.

As AI becomes embedded in legal practice, Gen Z lawyers are being asked to navigate a new kind of professional responsibility, one that demands not only technological literacy but a deeper ethical sensitivity. Upholding the rule of law now means understanding the tools we use, owning our mistakes, and ensuring that our work serves not only our clients but also the integrity of the legal system itself. This is not just about avoiding error, it’s about reimagining lawyering as a practice rooted in thoughtfulness, accountability, and a shared responsibility for the future of the profession.

According to the Federation of Law Societies of Canada’s Model Code of Professional Conduct, lawyers are expected to understand the risks and benefits of relevant technology and maintain the level of competence appropriate to their area of practice.

3.1-2 of a competent lawyer.

[4A] To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities. A lawyer should understand the benefits and risks associated with relevant technology, recognizing the lawyer’s duty to protect confidential information set out in section 3.3.

[4B] The required level of technological competence will depend on whether the use of understanding of technology is necessary to the nature and area of the lawyer’s practice and responsibilities and whether the relevant technology is reasonably available to the lawyer. In determining whether technology is reasonably available, consideration should be given to factors including:

(a) The lawyer’s or law firm’s practice areas;

(b) The geographic locations of the lawyer’s or firm’s practice; and

(c) The requirements of clients.

Legal Analysis 

In this B.C. court case dealt with a request for legal costs after a parenting dispute where the father, Mr. Chen, sought time with his children in China, and the mother, Ms. Zhang, successfully opposed it. While she asked for standard costs, she also pushed for special costs against Mr. Chen’s lawyer, Ms. Ke, for including two fake cases in her court documents revealed to be invented by ChatGPT. [1]

Facts:

In Zeng v. Chen, the father, Mr. Chen, applied to take his children who live with their mother, Ms. Zhang, in North Vancouver on a visit to China. The court denied his request on January 29, 2024, but left the door open for future consideration. Things between the parents had been rocky for years, dating back to a divorce attempt in China in 2015, and escalated after a financial dispute in 2020. Although both had permanent residency in Canada, Mr. Chen continued working in China while Ms. Zhang remained the primary caregiver in B.C. When Mr. Chen’s lawyer, Ms. Ke, filed the application in December 2023, she included two cases as legal justification for letting the children travel abroad. [2]

The problem?

Those cases didn’t exist. They were entirely fabricated by ChatGPT, and no one caught it until the opposing counsel, Mr. MacLean, flagged them. Ms. Ke apologized in an email sent through a colleague, admitting she used AI to draft the application and failed to verify the sources. She said she was unaware at the time that AI tools could produce fake case law and insisted she never meant to mislead anyone.

Despite her attempt to clarify and correct the mistake, the fallout was real: the opposing side argued that her actions wasted their time and caused unnecessary expense. The issue even caught public attention, and Ms. Ke faced both legal and reputational consequences, including a likely investigation by the Law Society of British Columbia. In her sworn affidavit, she expressed deep remorse, called the experience “mortifying,” and said the media attention left her overwhelmed and anxious. The court then turned its focus to whether she should be personally responsible for covering legal costs. [3]

Issues: 

1. Whether there has been substantial success and then whether cost should be awarded
2. Whether Ms. Ke should be personally liable for any costs awarded

Analysis: 

Whether there has been substantial success and then whether cost should be awarded

Rule 16‑1(9) of the Supreme Court Family Rules (BC), which states:

“Unless the court otherwise orders, a party who successfully opposes an application is not entitled to costs of the application unless that party is awarded costs at trial.” [4]

The degree of success necessary to be awarded costs is substantial success.  A rough-and-ready guide is about 75% or better looking at all of the disputed matters globally and recognizing that not all issues heard are of equal significance.  It is a qualitative exercise. [5]

What does “substantial success” mean when it comes to awarding legal costs?

When a judge is deciding who should pay for the legal costs after a court hearing, they don’t just look at who “won.” Instead, they look at how much a party won, overall. Substantial success usually means you won about 75% or more of what you were asking for,  but it’s not just about the math.

The court found that Ms. Zhang was substantially successful in opposing Mr. Chen’s application, particularly on the main issue pertaining to parenting time in China, which was denied. Given the time, effort, and complexity involved the judge ruled that Ms. Zhang was entitled to an award of legal costs.

Whether Ms. Ke should be personally liable for any costs awarded

Ms. Zhang seeks an order of special costs personally against Ms. Ke.  This is premised on the submission of “the extraordinary situation for the costs incurred by MacLean Law to try to find and then expose the AI ‘hallucination’ and Ms. Ke’s delay in addressing the true nature of the cases” in the notice of application.  This involved extra time, cost, and preparation to file the application response. [6] It requires a finding of reprehensible conduct or an abuse of process by the lawyer.  

The authorities make it clear that special costs against a lawyer are appropriate only where there has been “a serious abuse of the judicial system… or dishonest or malicious misconduct… that is deliberate”: Nuttall v. Krekovic, 2018 BCCA 341 at para. 28, citing Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26 at para. 29.  A mere “mistake, error in judgment or even negligence” does not warrant such an order: Nuttall at para. 29. [7]

Mr. MacLean, K.C. cast doubt on Ms. Ke’s claim that the inclusion of the fabricated cases was an honest mistake stemming from a lack of awareness about the risks of using ChatGPT. He questioned how a lawyer, particularly one preparing an application where the cited authorities are foundational could fail to verify the cases or remain unaware of the risks associated with AI-generated content. Especially in light of recent guidance from the Law Society and the widely reported case of Mata v. Avianca, Inc., where a New York lawyer relied on fictitious cases produced by ChatGPT. Mr. MacLean also submitted a webpage listing Ms. Ke’s academic credentials, which include multiple law degrees and a Ph.D. in law from the University of Victoria, to further challenge the credibility of her explanation. [8]

The court dismissed the request for special costs but found that Ms. Ke’s inclusion of fake cases caused unnecessary delays and extra work for opposing counsel. Under Rule 16-1(30), the court can hold a lawyer personally responsible for costs caused by their fault, even without misconduct like abuse of process. Applying this rule, the court ordered Ms. Ke to personally bear the additional costs incurred due to her mistake, covering several half-day increments of court time. 

The practice of law continues to evolve. Advances in technology, changes in the culture of those accessing legal services and the economics associated with practising law will continue to present challenges to lawyers. The ethical guidance provided to lawyers by their regulators should be responsive to this evolution. Rules of conduct should assist, not hinder, lawyers in providing legal services to the public in a way that ensures the public interest is protected.

Federation of Law Societies of Canada, Model Code of Professional Conduct, Commentary [4A]–[4B] to rule 3.1-2, online: FLSC Model Code.

[1] Zhang v. Chen, 2024 BCSC 285.

[2] Zhang v. Chen, 2024 BCSC 285 at paras. 5-17.

[3] Zhang v. Chen, 2024 BCSC 285 at para. 16.

[4] Supreme Court Family Rules, BC Reg 169/2009, r 16-1(9).

[5] Zhang v. Chen, 2024 BCSC 285 at para. 19.

[6] Zhang v. Chen, 2024 BCSC 285 at para. 25.

[7] Zhang v. Chen, 2024 BCSC 285 at para. 26.

[8] Zhang v. Chen, 2024 BCSC 285 at para. 27.

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