Courts have sanctioned lawyers who filed fake cases made up by AI, and bar groups now say the lawyer, not the tool, is responsible for checking the work.
Lawyers who let an AI tool write court filings without checking them can be sanctioned, and courts have already done it. A JD Supra excerpt from a book by Nextpoint and Tom O'Connor, "Artificial Intelligence for the Rest of Us," explains the cases and what bar groups now expect.
In 2023, in Mata v. Avianca, lawyers filed a response that quoted court decisions that did not exist. ChatGPT had made them up. The court said the lawyers "abandoned their responsibilities" by submitting non-existent opinions with fake quotes and citations. It imposed sanctions.
This kind of invention is called a hallucination. The tool can produce a case or a rule that sounds real and happens to back up your argument. The authors say the technology is not the main problem. It came down to inadequate lawyering, because nobody verified the work before filing.
The case did not stop others. Other lawyers have been sanctioned for much the same thing. Several people representing themselves in court have also been caught, presumably while using free tools instead of hiring a lawyer.
Several groups have issued guidance. The Pennsylvania Bar Association and Philadelphia Bar Association did so jointly in June 2024. California, Illinois, West Virginia, Florida and Missouri have offered similar guidance. The American Bar Association issued Formal Opinion 512 on generative AI on July 29, 2024. The opinions center on three duties:
The New York State Bar Association task force, in April 2024, offered "no conclusions." It urged readers to "be cautious, be curious, be vigilant, and be brave."
Model Rule 1.1 requires lawyers to give competent representation. In 2012, a comment to that rule was amended to say this includes knowing the risks and benefits of the technology a lawyer uses. The authors stress this means technical competence, not expert-level knowledge.
The same habits apply to anyone using AI for work or legal papers. Check every fact, quote and citation against a real source. Do not paste private client or customer details into a tool unless you know where that information goes. The excerpt ends with a checklist of questions for judging whether an AI use is ethical.
If AI helps write anything that matters, verify every fact yourself and keep private client or customer details out unless you know where they go.
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