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.

New Year’s Resolutions To Avoid Discipline

Here are some New Year’s resolutions to help you avoid disciplinary inquiries in your practice. Unhappy clients are the source of disciplinary complaints. Responding to a complaint swallows up time and money. The time spent responding to a complaint/grievance is unproductive time.

1.Make sure you have malpractice insurance. Insurance often has coverage for responding to client grievances. Check your policy limits and any exclusions. Insurance companies will refer you to their outside counsel, who are almost always excellent.

2. Do not display anger in communications with clients, especially when those communications are about unpaid legal fees. Anger triggers disciplinary authorities to take a closer look at the grievance. Losing your temper will cost you money and maybe more.

3.Archive text messages with clients. We all keep emails, but you should find a way to keep text messages with clients. Or never text with clients.

4. Use a carefully drafted engagement letter to set forth how you will charge the client and when you may withdraw. The failure to use an engagement letter is often a contributing factor in discipline cases. Where there is no engagement letter, you can be subject to a claim that you were not aware existed. “Lawyer failed to file my lawsuit.” The engagement letter could have protected you if you were only engaged to do estate planning.

5.Try your best to communicate rejections in writing. When you reject a client’s claim, responding in writing is often the best approach. The writing (email or letter) gives you a defense to the claim that you missed the statute of limitations.

6. Do not sue for fees if small amounts are involved. A lawsuit can generate a counterclaim or a grievance that will be a waste of your time. If you sue for a large balance, make sure you have another lawyer review your work before you file suit.

7. In any disputes with the client, explain why you think the client should take the action that you recommend. Tell the client that you are making a recommendation of settlement or other action to protect the client.

8. If there is a big problem with the client’s case, put it in writing. A written explanation that the case may be barred by the statute of limitations or caselaw will protect you when that client decides to file a grievance. Example: “we regret to inform you that your case appears to be barred by the statute of limitations.”

9. Follow the Rules of Professional Conduct. Read them every now and then and seek advice from another lawyer before you take some action.

10. Listen to your gut instinct. Your gut will often tell you that a prospective client will not work with you in a productive fashion. Clients with unrealistic expectations are the source of most grievances and lawsuits.

If you have an ethics question or just want to chat about an issue or a problem client, do not hesitate to contact us. We can be reached at 312-357-1515. We can often be of help to a you before trouble starts. Having a fresh set of eyes look at the problem can be very helpful.

Ed Clinton, Jr.

http://www.clintonlaw.net