A
In 2022,
- Varghese v.
- Shaboon v. Egyptair, 2013 IL App (1st) 111279-U (Ill. App. Ct. 2013)
- Petersen v.
Iran Air , 905 F. Supp 2d 121 (D.D.C. 2012) - Martinez v.
Delta Airlines, Inc ., 2019 WL 4639462 (Tex. App.Sept. 25, 2019 ) - Estate of Durden v.
KLM Royal Dutch Airlines , 2017 WL 2418825 (Ga. Ct. App.June 5, 2017 ) - Miller v.
United Airlines, Inc ., 174 F.3d 366 (2d Cir. 1999)
The only problem? None of the cases listed above actually exist.
In
The Court is presented with an unprecedented circumstance. A submission filed by plaintiff's counsel in opposition to a motion to dismiss is replete with citations to non-existent cases. When the circumstance was called to the Court's attention by opposing counsel, the Court issued Orders requiring plaintiff's counsel to provide an affidavit annexing copies of certain judicial opinions of courts of record cited in his submission, and he has complied. Six of the submitted cases appear to be bogus judicial decisions with bogus quotes and bogus internal citations. Set forth below is an Order to show cause why plaintiff's counsel ought not be sanctioned.2
LoDuca subsequently filed an affidavit on
Unsurprisingly, Schwartz' justification was not good enough for the Court. Just one day later, the Court issued a second Order to Show Cause, this time ordering both Schwartz personally and Levidow as a firm to show cause at a hearing early next month as to why they should not be sanctioned for Schwartz' citation to non-existent cases in court filings. Schwartz also faces the potential of being referred to the jurisdiction's grievance committees.
In response to the considerable publicity (e.g.,
All attorneys and pro se litigants appearing before the Court must, together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being.
Similar events have been reported in the
These cases provide a good opportunity to provide a refresher on several longstanding ethical rules (not to mention best practices) that apply here.
First, the comments to Model Rule 1.1 (Duty of Competence) explain that a lawyer should "keep abreast of ... the benefits and risks associated with relevant technology." The risk that generative AI will hallucinate - and lie about it afterwards - is something that lawyers should be aware of before using it.
Second, there are several potentially-applicable duties of supervision. Model Rule 5.1 requires that "[a] lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct." Model Rule 5.3 explains that "a lawyer having direct supervisory authority over [a] non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." To be sure, there is no argument that ChatGPT or other generative AI tools are lawyers or other persons (though it has passed the Uniform Bar Examination), meaning that—for now—these rules may not be literally, directly applicable. But they provide sound guidance for overseeing the work of a tool that creates output that resembles human-quality writing.
Third, Model Rule 1.6 requires attorneys to maintain confidentiality of client information. As we have previously discussed, confidential information should not be included in prompts for generative AI because of the risks of inadvertent disclosure.
Finally, though it should go without saying, one simple practice would have prevented this episode: cite check it before you file it.
Footnotes
1. See generally Mata v.
2. Order to Show Cause at 1, Mata v.
3. Affidavit in Response to Order of
4. Affidavit of
5. Id. at ¶¶ 6-7.
6. Id. at p. 6.
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