"AI presents opportunities for efficiency gains to be sure, but the costs to clients and public faith in attorneys is steep where ethical duties and judgment are cast aside and a litigation put on autopilot."
A passage from one of counsel's filings, particularly noted by the court.
Some excerpts from the long discussion in Parker v. Costco Wholesale Corp., decided in November by Magistrate Judge S. Kate Vaughan (W.D. Wash.), but only recently posted on Westlaw:
The Court identified material misstatements and misrepresentations in those filings, which contained hallucinated case and record citations and legal errors consistent with unverified generative artificial intelligence ("AI") use and ordered Counsel to show cause as to why sanctions should not issue. The Court outlines its observations before turning to Counsel's explanations….
Review of Plaintiff's Response to Defendant's Motion for Summary Judgment ("MSJ Response") indicated the filing relied on inapplicable law, misrepresented and misquoted the law and the record, and included a wide array of idiosyncratic citation errors. For brevity, the Court summarizes the most egregious examples….
[Among other things,] Counsel included hallucinated and inaccurate quotes to the record. This was particularly egregious given that he sought to demonstrate a question of material fact precluded summary judgment and attempted to do so by relying on mischaracterized evidence….
Viewed collectively, these legal, citation, and factual errors bore the hallmarks of unreviewed AI-generated work product or exceedingly negligent drafting….
The quality of Counsel's filings further deteriorated….
Plaintiff's Reply was otherwise notable in two respects. First, the text appeared to have been copy-pasted from a generative AI program without any quality control. Straight, as opposed to curly, apostrophes and quotation marks remained throughout, indicating the content was likely not typed into a word processor. At some point, the program apparently experienced, and documented, an "[ ]artificial error[.]"
Second, Defendant twice put Counsel on notice that his position relied on demonstrably inaccurate characterizations of the Local Rules and Defendant's filings. Yet Counsel opted to file a Reply that doubled down on his position instead of withdrawing his frivolous motion. Together, the legal, factual, "artificial," and typographical errors indicated to the Court that the Reply was generated without any meaningful attorney oversight and filed despite Counsel knowing, or having reason to know, the positions taken were indefensible….
[When ordered to explain himself,] Counsel admitted that Callidus AI, "a specialized legal 'AI'" tool, was used to draft the MSJ Response. He explained that he hired a contract attorney with more federal court experience to draft the document and was not aware that attorney had used AI until he received the Order to Show Cause. He took responsibility for the program's use, "for not checking some quotes," and for "submitting some improper case citations." He also emphasized that he did not intend to submit a filing with false information and did not plan to use AI to prepare any future filings. He did not disclose what level of review, if any, he performed on the contract attorney's work product….
Finally, Counsel provides explanations regarding the factual errors in the MSJ Response. Those explanations contain additional quotation errors….
The Court appreciates that Counsel took full responsibility for his filings and apologized to the Court and opposing counsel. However, despite his remorse, sanctions are warranted….
Rule 11 was undoubtedly violated by Counsel's submission of the MSJ Response. That is, Counsel certified his arguments' legal and factual contentions were warranted, knowing he had not verified the authority in his brief and that some of his brief relied on inapposite law.
While Counsel says "some" citations were not checked, the Court cannot credit his inference that the brief was subjected to any meaningful scrutiny. The Court's review indicates that a significant proportion of authority cited was misquoted, miscited, misrepresented, or inapplicable. Many of the errors were obvious on the face of the document. A competent attorney would have, upon review of the arguments and authority cited, flagged that something was wrong….
The treatment of exhibits and factual representations further establish that Counsel either did not conduct an adequate examination of the evidence or misrepresented it. Altering quotes without indication and placing paraphrased content in quotation marks is unacceptable…. Counsel's [Order to Show Cause] Response contained similar sloppiness which rendered his argument and sources indecipherable….
The Court finds Counsel's failure to verify the legal and factual support for his MSJ Response, especially in view of the obviousness of the errors, his insinuation that he only failed to verify "some" citations, and his implicit admission that he knew the brief relied on inapposite sources of law "outrageously improper, unprofessional and unethical" and tantamount to bad faith. That conduct also calls into serious question Counsel's adherence to his broader ethical duties as a member of this bar….
Finally, the importance of the MSJ Response for Plaintiff merits consideration. Defendant moved to dismiss Ms. Parker's case with prejudice. The MSJ Response was mission-critical for Ms. Parker. Counsel submitted it without any discernible scrutiny.
That is outrageous, in addition to the reasons detailed above, because Counsel discarded a critical opportunity to advocate for his client. But what is even more outrageous is that the entire situation need not have happened. Defendant clearly stated in its Notice of Removal that it was never served. See Dkt. 1 at 2 ("Costco was not served with a copy of the Complaint or the Summons initiating the State Court Action."). When Counsel received that notice, there was still time to remedy the service issue and set Ms. Parker's suit on the right course. But Counsel failed to act. And when Defendant moved to dismiss the case on that same ground, Counsel still did not step up for his client. Instead, he submitted the unverified MSJ Response that turned out to be replete with bogus citations and legal errors.
{Unfortunately, perusal of Counsel's other recent cases in this Court show that the failure to serve in this case is not an aberration. Another one of Counsel's cases was recently dismissed as time barred by this Court after Counsel twice failed to serve the defendants with process.} ….
The allegations made by Ms. Parker in this case are serious. She alleges racial discrimination that resulted in her constructive discharge after exercising leave rights. Some of her claims have been dismissed as time barred because Defendant was never served. While the Court cannot opine on whether she would have ultimately prevailed on those claims, her attorney's conduct compromised her efforts to receive closure through our legal system and any remedy she was due.
Signing pleadings is not a meaningless formality. It is the mechanism by which attorneys stake their reputations on the contents of a filing. AI presents opportunities for efficiency gains to be sure, but the costs to clients and public faith in attorneys is steep where ethical duties and judgment are cast aside and a litigation put on autopilot. AI may eventually prove flawless, but "[w]henever that day comes, [a] flawless brief will only have meaning because the signature at the bottom does." …
The court publicly reprimanded counsel, ordered him to pay $3000 in sanctions, and to "compensate Defendant for expenses incurred composing its Response at Docket No. 41 to his Motion to Strike" (which were later found to be over $3200). District Judge David Estudillo later referred the matter to the Washington state bar for possible discipline.
