The Volokh Conspiracy
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"Defense Counsel Estimated That 90% of the Citations He Used Were Accurate,"
"which, even if it were true, is simply unacceptable by any measure of candor to any court."
From the Jan. 8 decision of New York's intermediate appellate court in Deutsche Bank Nat'l Trust Co. v. LeTennier, written by Justice Lisa Fisher:
[D]efendant's opening brief cites six cases which do not exist. Plaintiff identified these fabricated cases as possibly being the product of artificial intelligence (hereinafter AI), and moved for an order seeking, among other things, sanctions against defendant and defense counsel. Defendant claimed the nonexistent cases were citation or formatting errors that he would correct in his reply brief, and then opposed the motion for sanctions with more fake cases and interpretations for existing cases that are at best strenuously attenuated, and at worst entirely inapposite.
Defendant's subsequent reply brief acknowledged that his "citation of fictitious cases is a serious error" and that they are "problematic," but failed to offer any corrections or further explanation as previously stated. He then proceeded to include more fake cases and false legal propositions in two subsequent letters to this Court that requested judicial notice of a bankruptcy stay. In examining the propriety of defendant's previously filed papers, more nonexistent cases were discovered in a motion that granted affirmative relief to defendant.
Defense counsel reluctantly conceded during oral argument that he used AI in the preparation of his papers and, although he told the Court that he checked his papers, the filings themselves demonstrate otherwise. In total, defendant's five filings during this appeal include no less than 23 fabricated cases, as well as many other blatant misrepresentations of fact or law from actual cases….
[Defendant] has also misrepresented the holdings of several real cases as being dispositive in his favor—when they were not. It is axiomatic that submission of fabricated legal authorities is completely without merit in law and therefore constitutes frivolous conduct. It cannot be said that fabricated legal authorities constitute "existing law" so as to provide a nonfrivolous ground for extending, modifying or reversing existing law….
[D]uring oral argument defense counsel estimated that 90% of the citations he used were accurate, which, even if it were true, is simply unacceptable by any measure of candor to any court. Where we are most troubled is that more than half of the fake cases offered by defendant came after he was on notice of such issue, whereby his reliance on fabricated legal authorities grew more prolific as this appeal proceeded—despite it being apparent to him that such conduct lacked a legal basis. Rather than taking remedial measures or expressing remorse, defense counsel essentially doubled down during oral argument on his reliance of fake legal authorities as not "germane" to the appeal….
Accordingly, recognizing this as the first appellate-level case in New York addressing sanctions for the misuse of GenAI, we find the imposition of a monetary sanction on defense counsel Joshua A. Douglass in the amount of $5,000 to be appropriate under the circumstances, with the further goal of deterring future frivolous conduct by defendant and the bar at large.
To be clear, attorneys and litigants are not prohibited from using GenAI to assist with the preparation of court submissions. The issue arises when attorneys and staff are not sufficiently trained on the dangers of such technology, and instead erroneously rely on it without human oversight. As with the work from a paralegal, intern or another attorney, the use of GenAI in no way abrogates an attorney's or litigant's obligation to fact check and cite check every document filed with a court. To do otherwise may be sanctionable, depending on the facts and particular circumstances of each case.
Where most cases involving GenAI would conclude here, we turn to plaintiff's further contentions that the appeal itself is frivolous. We find this contention to have merit. Defendant filed no less than seven motions before Supreme Court challenging either the decision granting summary judgment or the judgment of foreclosure and sale—or both. The gravamen of each application related to the issue of standing. The conduct by defendant continued to escalate, culminating in multiple warnings of frivolous conduct by Supreme Court. At one point, defendant filed over 20 irrelevant documents which had to be stricken and resulted in a sanction.
Despite being represented by counsel, some of these motions were filed pro se by defendant. The misuse of GenAI represents an escalation in such unabashed misconduct, and the present appeal is a "continuation[ ] of the underlying protracted and frivolous litigation pursued by defendant undeterred by the repeated" warnings and imposition of sanctions by Supreme Court. As [noted in a different part of the opinion], defendant's contentions on appeal—which this Court previously considered and rejected—"are not ultimately unpersuasive, yet good-faith, arguments requiring our review of existing law, but, rather, part of a continuing effort to delay the [foreclosure] action and harass plaintiff."
Although defense counsel signed the papers filed with this Court, which were uploaded through his NYSCEF account, it is further not unnoticed that the metadata of numerous documents indicate they originated from a program in his client's name. Such result would be consistent with defendant filing papers pro se before Supreme Court, and defense counsel's apparent unfamiliarity during oral argument with certain papers he allegedly filed during the pendency of this appeal.
Given the baseless nature of this appeal, and recognizing that sanctions must be goal oriented to deter future conduct to prevent the waste of judicial resources and continued vexatious litigation of specific individuals too, we conclude that an additional sanction of $2,500 shall be imposed on defense counsel Joshua A. Douglass and $2,500 shall be imposed on defendant Jean LeTennier for pursing this appeal. We have examined the remaining contentions of the parties and have found them to be without merit, rendered academic or frivolous.
