In a strongly worded order, Judge Julie A. Robinson of the U.S. District Court for the District of Kansas publicly admonished and sanctioned four lawyers representing a plaintiff company in a patent infringement case for using ChatGPT to find caselaw to support a response to a motion to exclude an expert witness, and a response to the defendant’s motion for summary judgment.

In the 36-page order, the court made it clear that not only the lawyer who used AI to generate the hallucinated citations, but also his partners and local counsel bore responsibility for the filing of the motion. This is a clear reminder of the non-delegable duty of lawyers under Rule 11 of the Federal Rules of Civil Procedure. The Court held that “[b]ecause there is no dispute that all five . . . attorneys signed both documents that included these errors, and they admit that not one of them verified that the case law in those briefs actually exist and stand for the propositions for which they were cited, their conduct violates Rule 11(b)(2).”

The brief facts are that a seasoned lawyer admitted pro hac vice before the court that the prepared motion was created using ChatGPT, and he admitted that it was his first time doing so. He was under stress personally and admitted he was not thinking straight, and although he meant to check the citations before filing the motion, he never did. His partners, although also admitted pro hac vice, were not responsible for the motion, never read it, and did not participate in its preparation. The associate assigned to the case read the motion, made a few changes, but was not assigned to check the citations. The local counsel relied on the pro hac vice counsel and reviewed it briefly before filing it but never checked the citations. The court’s order points out that the response to the motion to exclude “contains a litany of problems: (1) nonexistent quotations; (2) nonexistent and incorrect citations; and (3) misrepresentations about cited authority.” Some of the same issues were included in the response to the motion for summary judgment.

Here’s what the court had to say about each of the attorneys’ responsibilities and the sanctions it assessed:

• The most culpable lawyer used ChatGPT and failed to check the citations. Although he was experiencing difficulties in his personal life, he never asked for an extension or help from the other five lawyers representing the plaintiff in the case. Instead, he filed the motion on time, cut corners by using ChatGPT and filed a response that included the deficiencies above. Neither his co-counsel nor his client were aware of the generative AI use. He was a “novice” at using it and is only now aware of the risks. Although the court was sympathetic to his personal plight (and he graciously emphasized that he was the only one culpable), the court stated that “citing to a nonexistent case, attributing a nonexistent quotation to an existing case, and misstating the law violates Rule 11(b).” The violation is the failure to verify the cases, not the intent behind the failure. The court noted that the attorney’s unawareness of the “very real risk of case hallucinations,” after several instances of Rule 11 sanctions being levied against lawyers for this same violation was an aggravating fact. The court directed the attorney to implement a robust policy to “deter any future instance of submitting unverified authority in a filing…[by requiring] him to submit to the Clerk for filing a certificate outlining specific internal procedures at his firm that he intends to impose. . . and imposes a monetary fine of $5,000, . . .and revokes his pro hac vice admission to this Court.” The court further directed the attorney to “self-report to the state disciplinary authorities where he is licensed by providing them with a copy of this Order.”
• The attorney’s partners, who did not participate in brief preparations, signed the filing despite failing to determine the accuracy of the contents. One of the partners assigned an associate to help and was on a family vacation when it was filed. The court pointed out that merely affixing their names to the brief without reviewing it, “violated [their] duty to conduct a reasonably inquiry into the facts and the law before filing.” The court reiterated that Rule 11 is non-delegable and imposed a fine of $3,000 for each of the co-counsel who signed the pleadings.
• The court did not sanction the associate assigned to the case, as he had no supervisory authority and “was placed in a difficult position by his supervising attorneys.”
• As for local counsel, he also signed the defective pleadings, and “by doing so, he vouched for the Texas attorneys in this matter.” He failed to cite-check them. The firm set forth its efforts to ensure this doesn’t happen again and provided the court with a formal policy around generative AI use, and the attorney “voluntarily sanctioned himself in the form of refraining from serving as sponsoring or local counsel for pro hac vice attorneys for a period of 12 months.” With the above considerations, the court sanctioned the local counsel $1,000.

The clear takeaway is that firms need to address the fact that lawyers may be tempted to use GenAI even when they have no experience, know or don’t know of the consequences, and are addressing personal issues. Judges have no sympathy when it comes to hallucinations and misrepresentations in briefs, as it is a waste of time and resources, and is a clear violation of Rule 11. Ignorance is not a defense, and relying on your partners, co-counsel, or local counsel will not get you off the hook, as Rule 11 is non-delegable. Firms may wish to consider adopting policies and guidance for attorneys on the use of GenAI tools, requiring all lawyers who are signing pleadings to be responsible for checking and verifying cites before affixing their signature to a pleading. There can be no reliance on others before a pleading is filed.