Hallucinated Citations in Brief Filed by Assistant County Attorney

From a Minnesota Tax Court decision Thursday, Delano Crossing 2016 v. County of Wright (Chief Judge Jane N. Bowman and Judges Bradford S. Delapena and Beverly J. Luther Quast):

In support of a motion for summary judgment, which the court denies in a concurrent order, the County submitted a brief that included five case citations generated by Artificial Intelligence (AI); none of the five citations referred to an actual judicial decision. Indeed, much of the County's brief appeared to be written by AI. We subsequently ordered Wright County to show cause why it should not be sanctioned and why Ms. Pence, who signed and filed the brief, should not be reported to the Minnesota Lawyers Professional Responsibility Board. For the reasons below, although we believe Ms. Pence's conduct violated Rule 11, we decline to order sanctions. Additionally, we refer this matter to the Minnesota Lawyers Professional Responsibility Board for further review….

[When asked to explain the situation,] Ms. Pence generally characterized her filing of a brief containing AI-hallucinated case citations as a mistake, stating: "I believe I inadvertently filed a draft Motion that was never intended to be the final product. I did not intend to file an AI-generated pleading; however, I have been unable to locate any other documents containing my research."

Ms. Pence further averred that she did not realize her brief contained fake case citations until approximately 6:48 p.m. the night before the motion hearing, prompting Ms. Pence to conclude that the best time to deal with the situation was at the impending hearing. Ms. Pence further attested that although the case citations in her brief were fake, "the legal contentions in the motion are warranted by existing law as cited [orally during the hearing]." Ms. Pence generally attested, in other words, that although she "erroneously filed a document with hallucinated cases," the County's arguments were otherwise legally sound. Ms. Pence added that she has taken several remedial measures to ensure this does not happen again, and she understands "the seriousness of [her] mistake."

Rule 11.02 states that, "by presenting to the court … a pleading, written motion, or other document," an attorney certifies "to the best of [their] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances" that "the claims, defenses, and other legal contentions therein are warranted by existing law…." "Thus, rule 11 prescribes an affirmative duty on counsel to investigate the factual and legal underpinnings of a pleading." …

We conclude that the inclusion of citations to non-existing cases (or other legal authorities) is a violation of Rule 11.02(b), as fake case citations cannot support any legal claim. Further, using fake case citations is inherently misleading, as the signing attorney induces readers to believe that their legal contentions are supported by existing law….

We find no merit in Ms. Pence's defense that all of the County's legal claims can be supported by genuine controlling precedent (that Ms. Pence orally offered to the court during the hearing). As an initial matter, we conclude that using fake case citations, particularly while knowing that AI can generate fictitious citations, is a Rule 11 violation, because the rule imposes an affirmative duty to investigate the "legal underpinnings of a pleading." In any event, the County's substitute cases do not support the legal contentions asserted in its brief….

Calling the inclusion of fake case citations a "mistake" in this matter is not objectively reasonable….

We believe one appropriate sanction here would be to summarily deny the County's motion. If an attorney submits to this court legal arguments using fake legal authority, we generally will deny the motion without expending the time and resources necessary to analyze those arguments. As described in our concurrent Order denying the County's motion, however, we concluded that the County's arguments were so clearly incorrect that it was preferable to deny them on the merits. In lieu of summarily denying the County's motion as a sanction, we believe that this Order … sufficiently deters Ms. Pence from relying solely on AI for case citations or legal conclusions in the future. Thus, we decline to order any further sanctions in this matter….

"Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." Minn. Rules of Pro. Conduct r. 1.1. In addition, a lawyer "shall not knowingly … make a false statement of fact or law to a tribunal …" Wright County's brief in this matter raises questions of truthfulness and candor to the court.

We are mindful of our responsibility as judges. "A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority."

We believe the submission of an AI-generated brief, apparently unreviewed, as evidenced by inclusion of entirely fake case citations, reasonably raises questions as to a lawyer's honesty, trustworthiness, and/or fitness as a lawyer. Thus, as we are obligated to inform the authority under our governing rule, we will send to the Minnesota Lawyer's Professional Responsibility Board [the relevant documents in the case -EV] …. The Board will respond as it sees fit.