With new AI tools popping up every day, attorneys can no longer trust that opposing counsel’s citations and propositions of law are accurate, and courts are not happy about it. Since May of 2023, courts in the United States have issued 212 sanctions decisions regarding generative AI-produced hallucinations in legal filings. 169 of those decisions were rendered this year. While AI pleadings are commonly used by pro se litigants, nearly half of these infractions were committed by legal professionals, including attorneys, paralegals, and judges.
Although some courts have been lenient, the use of AI without conducting a thorough review of all citations can expose a lawyer to significant risks. For example, a recent order from the District of Arizona sanctioned an attorney for the suspected use of AI in drafting the plaintiff’s opening brief. The attorney in question is the owner of a national social security disability practice and appears pro hoc vice in courts across the country. In this case, the sanctioned counsel received a brief from a contract attorney, which she apparently signed and filed without checking any of the citations or propositions of law.
According to her firm’s policies, the brief was supposed to go through several levels of review before filing, including spot checking of the citations, but it now appears that this protocol was not followed. Counsel’s Brief in Response to the court’s Show Cause Order admits at least some of the errors in the plaintiff’s opening brief were “likely” AI hallucinations, without providing any positive admission that AI had been used to prepare the brief. Ultimately, the court found that a definite finding on the use of AI was not necessary as the brief had all of the indicia of AI writing.
According to the judge in this case, “… well over the majority of the citations provided to this court in plaintiff’s opening brief were fabricated, misleading or unsupported.” Of the 19 citations in the opening brief, only 5-7 of the cases cited actually existed and appeared as quoted or generally supported the proposition for which they were cited. The remaining 12-14 cases either did not exist, did not contain the language quoted, or did not support the proposition of law asserted.
Although this opinion focused on the conduct of the filing attorney, the court also made sure to point out that, but for the court’s investigation, this issue would not have come to light because the defendant also did not conduct a review of the citations in the plaintiff’s brief to ensure accuracy. Specifically, the court states, “Defendant did not raise any [of] the above issues in the Answering Brief. . . . It is unclear to the Court why Defendant did not raise any of the deficiencies identified in the table above, particularly with respect to cases that simply did not exist, but the Court focuses this Order on Plaintiff’s Counsel’s conduct.” (emphasis added).
Based upon the suspected use of AI in drafting the plaintiff’s opening briefing, the court levied severe sanctions against the filing attorney, including requiring the offending attorney to write letters of apology to the three judges to whom the fabricated cases were attributed, revoking counsel’s pro hac vice status, providing copies of the order to any state bar of which the signing attorney was a member, and ordering counsel to provide a copy of the sanctions order to every judge who presides over any case in which this attorney is counsel of record, in any jurisdiction.
This order highlights the importance of diligence: attorneys must not only review their own work to ensure accuracy of case law and the arguments being made, but courts are now also looking to attorneys to raise any deficiencies in opposing counsel’s utilization of case law which may have been artificially generated by AI.
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