Lawyer Referred to Grievance Panel for Nonexistent Citation

Park v. Kim, No. 22-2057, was decided by the Second Circuit Court of Appeals on January 30, 2024. The Court, citing Rule 37 and Rule 41(b), affirmed the dismissal of Plaintiff’s lawsuit for failure to comply with discovery and other obligations. The court also sanctioned the attorney for the plaintiff for using Chat-GPT to prepare portions of one of the briefs. The AI tool generated a fake case which was cited in the brief. The Court held that the failure to check citations violated Rule 11.

“All counsel that appear before this Court are bound to exercise professional judgment and responsibility, and to comply with the Federal Rules of Civil Procedure. Among other obligations, Rule 11 provides that by presenting a submission to the court, an attorney “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2); see also N.Y. R. Pro. Conduct 3.3(a) (McKinney 2023) (“A lawyer shall not knowingly: (1) make a false statement of . . . law to a tribunal.”). “Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, [and] legally tenable.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). “Under Rule 11, a court may sanction an attorney for, among other things, misrepresenting facts or making frivolous legal arguments.” Muhammad v. Walmart Stores E., L.P., 732 F.3d 104, 108 (2d Cir. 2013) (per curiam).

At the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the existence and validity of, the legal authorities on which they rely. Indeed, we can think of no other way to ensure that the arguments made based on those authorities are “warranted by existing law,” Fed. R. Civ. P. 11(b)(2), or otherwise “legally tenable.” Cooter & Gell, 496 U.S. at 393. As a District Judge of this Circuit recently held when presented with non-existent precedent generated by ChatGPT: “A fake opinion is not `existing law’ and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law, or for establishing new law. An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.” Mata v. Avianca, Inc., No. 22CV01461(PKC), 2023 WL 4114965, at *12 (S.D.N.Y. June 22, 2023).

Attorney Lee states that “it is important to recognize that ChatGPT represents a significant technological advancement,” and argues that “[i]t would be prudent for the court to advise legal professionals to exercise caution when utilizing this new technology.” Response at 2. Indeed, several courts have recently proposed or enacted local rules or orders specifically addressing the use of artificial intelligence tools before the court.^[3] But such a rule is not necessary to inform a licensed attorney, who is a member of the bar of this Court, that she must ensure that her submissions to the Court are accurate.

Attorney Lee’s submission of a brief relying on non-existent authority reveals that she failed to determine that the argument she made was “legally tenable.” Cooter & Gell, 496 U.S. at 393. The brief presents a false statement of law to this Court, and it appears that Attorney Lee made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented. We therefore REFER Attorney Lee to the Court’s Grievance Panel pursuant to Local Rule 46.2 for further investigation, and for consideration of a referral to the Committee on Admissions and Grievances. See 2d Cir. R. 46.2.

We further ORDER Attorney Lee to provide a copy of this ruling to Plaintiff-Appellant Park — translated into Korean if necessary to permit Park to understand it — within twenty-one days, and to file a certification on the docket in this case attesting that she has done so.”

Comment: it saddens me that this trend of sloppy work and citing fake cases has continued. If you cannot complete your work on time and ask an AI tool to practice law, you can expect discipline.

Ed Clinton, Jr.

www.clintonlaw.net

Missouri Court Sanctions Litigant For Fake Citations

On February 13, 2024, the Missouri Court of Appeals, Eastern District, issued its opinion in the case captioned Kruse v. Karlen, No. ED111172. Karlen was a pro se litigant and the appellant and he was sanctioned for failing to file an appellate brief that complies with the rules. The appeal was dismissed. The brief had numerous deficiencies including, an inadequate statement of facts without citations to the record, no Points Relied On section and no Appendix. The brief also lacked a Table of Contents and a list of Authorities.

But all of that pales in comparison to the Court’s discussion of fake citations. “Particularly concerning to this Court is that Appellant submitted an Appellate Brief in which the overwhelming majority of the citations are not only inaccurate but entirely fictitious. Only two out of the twenty-four case citations in Appellant’s Brief are genuine. The two genuine citations are presented in a section entitled Summary of Argument without pin cites and do not stand for what Appellant purports.” Opinion pages 5-6. There were twenty two instances of fake citations in the brief. Some of the citations had real case names, but the asserted point of law the case stands for was entirely fake.

The Appellate offered an apology in his Reply Brief. “In his Reply Brief, Appellant apologized for submitting fictitious cases and explained that he hired an online “consultant” purporting to be an attorney licensed in California to prepare the Appellate Brief. Appellant indicated that the fee paid amounted to less than one percent of the cost of retaining an attorney. Appellant stated he did not know that the individual would use “artificial intelligence hallucinations” and denied any intention to mislead the Court or waste Respondent’s time researching fictitious precedent. Appellant’s apology notwithstanding, the deed had been done, and this Court must wrestle with the results.” Opinion page 8.

The court explained the obvious as follows: “We regret that Appellant has given us our first opportunity to consider the impact of fictitious cases being submitted to our Court, an issue which has gained national attention in the rising availability of generative A.I. “Citing nonexistent case law or misrepresenting the holdings of a case is making a false statement to a court[;] [i]t does not matter if [generative A.I.] told you so.” Maura R. Grossman, Paul W. Grimm, & Daniel G. Brown, Is Disclosure and Certification of the Use of Generative AI Really Necessary? 107 JUDICATURE 68, 75 (2023).” The Court dismissed the appeal as frivolous and awarded sanctions of $10,000.

When I began writing this blog, I did not consider the possibility that litigants would simply make up citations to support points of law they wished to argue. I have now covered three such cases in the last year. That is three too many.

Ed Clinton, Jr.

Another Instance of Fake Citations

https://www.theguardian.com/us-news/2023/dec/29/michael-cohen-trump-lawyer-fake-citations

This issue has come up before where a lawyer allegedly uses AI to draft a brief and comes up with fake citations. AI programs are not responsible for the quality of their work. They can’t be sanctioned or punished or fined. But the lawyer who signs said brief most certainly can be sanctioned or fined.

In this particular story, the claim is that Michael Cohen, a disbarred attorney who spent much of his career representing Donald John Trump, gave his lawyer fake citations for some legal brief. Cohen in turn blames the AI program he used.

There is no excuse for this behavior. The lawyer must accept responsibility. He should never have taken any work product from Michael Cohen who is both disbarred and a convicted felon. Sanctions are likely to issue as well as a disciplinary complaint.

No matter how much pressure you are under to get something done on time, do not ask AI to practice law. It cannot do that and you will pay a high price. Instead, get an extension of time or file the brief with a motion for leave to file instanter. Hold yourself accountable or others may be forced to do it for you.

Ed Clinton, Jr.

http://www.clintonlaw.net

Colorado Lawyer Agrees To Discipline for AI Use

The Colorado Supreme Court suspended a lawyer for 90 days for his use of Chat GPT in composing a brief which contained fictitious caselaw. The lawyer asked Chat GPT to compose a brief. Chat GPT made up the case citations completely. The lawyer presented the brief in court before eventually revealing the problem to his supervising attorney and the Court. The disciplinary notice reads as follows:

People v. Zachariah C. Crabill. 23PDJ067. November 22, 2023.

“The Presiding Disciplinary Judge approved the parties’ stipulation to discipline and suspended Zachariah C. Crabill (attorney registration number 56783) for one year and one day, with ninety days to be served and the remainder to bestayed upon Crabill’s successful completion of a two- year period of probation, with conditions. The suspension took effect November 22, 2023.

In April 2023, a client hired Crabill to prepare a motion to set aside judgment in the client’s civil case. Crabill, who had never drafted such a motion before working on his client’s matter, cited case law that he found through the artificial intelligence platform, ChatGPT. Crabill did not read the cases he found through ChatGPT or otherwise attempt to verify that the citations were accurate. In May 2023, Crabill filed the motion with the presiding court. Before a hearing on the motion, Crabill discovered that the cases from ChatGPT were either incorrect or fictitious. But Crabill did not alert the court to the sham cases at the hearing. Nor did he withdraw the motion. When the judge expressed concerns about the accuracy of the cases, Crabill falsely attributed the mistakes to a legal intern. Six days after the hearing, Crabill filed an affidavit with the court, explaining that he used ChatGPT when he drafted the motion.

Through this conduct, Crabill violated Colo. RPC 1.1 (a lawyer must competently represent a client); Colo. RPC 1.3 (a lawyer must act with reasonable diligence and promptness when representing a client); Colo. RPC 3.3(a)(1) (a lawyer must not knowingly make a false statement of material fact or law to a tribunal); and Colo. RPC 8.4(c) (it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).”

My comments: This case has been widely reported in the press. It is unfortunate the attorney trusted the software to write a brief for him, but then failed to check the case citations. Software can be corrected quickly so that it does not repeat the error. Human beings, on the other hand, are prone to repeat these types of errors. As an associate it was drummed into me to check the case citations and check Shepards. This can all be done online now.

Ed Clinton, Jr.