The Volokh Conspiracy
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Self-Represented Plaintiff Files Lawsuit, Court Spots AI-Hallucinated Citations—in Defense Lawyer's Filings
From Russell v. Mells, decided yesterday by Florida Court of Appeal (Second District) Chief Judge Matthew Lucas, joined by Judges Robert Morris and Susan H. Rothstein-Youakim:
Because [one] case citation [in defense counsel Attorney McLane's filing] appeared to have been "hallucinated" (most likely by a generative artificial intelligence program) and because the other two case citations contained misquotations, we issued an order to show cause to appellee's counsel. In our order, we directed counsel to file a written response explaining how these case citations and quotations were generated. We further warned that the response should also show cause as to why sanctions shouldn't be imposed.
In her response, Attorney McLane stated that the three case citations "were researched via computer generated searches" and acknowledged that she "failed to fully vet these searches." With respect to the two misquotations, she stated that "the errors … were not substantive in nature and were primarily the result of miss placed [sic] quotation marks." She conceded that the citation to "Cade v. Roberts" was "substantive but was not made for the purpose of misleading the Court." She then noted that there was Florida case law supporting "the substance of the argument" on this point, presumably meaning that the quoted text in her brief about motions to dismiss could find support elsewhere in Florida law. {She never tells us where, and there is no text we've found in Florida law that directly matches the purported quotation she set forth in the brief. But substantively Ms. McLane is correct.}
Lastly, we couldn't help but notice, the signature line of counsel's response to our order to show cause appears to have been executed by someone on behalf of Ms. McLane, instead of by Ms. McLane herself. {While a delegated signature execution may not have been a legal or ethical impropriety, under these circumstances, it certainly didn't make a good impression. In the future, our orders to show cause for these kinds of matters will specify that counsel must personally execute the written response, though that point really should not need to be stated.}
In essence, counsel has told us that her "computer generated searches" misstated the law but that she didn't mean to mislead the court when she filed those misstatements. We will take her at her word about her intentions. But what counsel seems to imply—that since the substance of the analysis in her brief wasn't necessarily wrong, her misstatements are not an issue we should be overly concerned about—is simply unacceptable. Indeed, we are deeply troubled by this brief and by this attorney's response.
The judges on this panel have, collectively, served for over fifty years as judicial officers. We have over a hundred years of experience as members of the Florida Bar. Before becoming appellate or trial judges, we practiced in state and federal courts in a wide variety of cases throughout the State of Florida. None of us can recall an instance when an attorney accidentally submitted a completely fabricated case as a legal authority to a court of law—not until the recent advent of generative artificial intelligence.
Unfortunately, we're finding this problem arising more and more frequently…. When a lawyer cites imaginary legal authorities to our court as if they were law, we are compelled to refer that lawyer to the Bar because of the professional rules of conduct. [The court did indeed do so here. -EV]
It doesn't take much moral imagination to understand why. As judges, we rely on attorneys to ethically represent their clients. We expect that representation to be zealous, honest, and competent. Indeed, lawyers owe the courts and their clients a duty to practice with competence and candor. By signing an appellate brief, a lawyer certifies that he or she has read the document and that to the best of the lawyer's knowledge, information, and belief there are "good grounds to support the document."
These ethical requirements are not excused simply because a computer program generated a faulty or misleading legal analysis. Nor is it an excuse that the attorney did not intend to mislead the court. "To state the obvious, it is a fundamental duty of attorneys to read the legal authorities they cite in appellate briefs or any other court filings to determine that the authorities stand for the propositions for which they are cited."
Obviously, that didn't happen when Ms. McLane filed this answer brief. Instead, counsel "fundamentally abdicated" her duty to the court and her client when she submitted this filing without verifying that the three cases cited in her brief said what she claimed they said. Accordingly, it is our duty to refer this matter to the Florida Bar to proceed as it deems appropriate.
We are publishing this aspect of the case with the hope that it will remind attorneys that technological advances do not dispense with ethical obligations….
