Lawyers Citing Nonexistent Cases Ordered to Pay Opponents' Attorney Fees, Double Costs, $15K Fine

From Whiting v. City of Athens, decided yesterday by Sixth Circuit Judge John Bush, joined by Judges Jane Stranch and Eric Murphy:

These consolidated appeals concern several lawsuits filed over an incident at the annual fireworks show hosted by the City of Athens, Tennessee, in 2022, and the subsequent fallout. By separate opinion issued this date, we affirm the district court in all respects.

This opinion addresses the misconduct of Glenn Whiting's lawyers, Van Irion and Russ Egli, in their briefing before this court and the sanctions we impose for it. That briefing repeatedly misrepresented the record, cited non-existent cases, and cited cases for propositions of law that they did not even discuss, much less support….

[W]e found over two dozen fake citations and misrepresentations of fact in Whiting's briefs, which we list in an appendix to this opinion. {This is a conservative estimate. We call something a "fake citation" or "misrepresentation of fact" only when it is clearly so. We do not include typos or sloppy citations. "As those mistakes could be attributed to simple sloppiness in drafting, as opposed to a failure to comply with the basic obligations of legal counsel, they are not the subject of this" opinion. If we included typos and other errors that are arguably, but not clearly, a misrepresentation or fake citation, we would be looking at far more misstatements of fact and law.}

Upon discovering these problems, we ordered Irion and Egli to show cause why they should not be sanctioned. The order instructed them to (1) explain why they should not be sanctioned for citing fake cases, (2) provide a copy from Westlaw or LexisNexis of all the cases and authorities cited in all of the briefs filed across the three appeals, (3) highlight any material that they quoted from those cases, (4) tell us who wrote the briefs in each case, (5) tell us whether the briefs were ghostwritten in whole or in part, (6) tell us whether they used generative AI to write the briefs, and (7) explain how they cite-checked the briefs.

Irion and Egli did not respond to these directives. Instead, they said the show cause order was "void on its face for failing to include a signature of an Article III judge," was "motivated by harassment of the Respondent attorneys," and "reflect[ed] illegal ex-parte [sic] communications within this Court." …

[W]e "reject[ ] any … notion that because some authority exists to support a legal proposition it should negate the harm caused by false and hallucinated cases. Put bluntly—absolutely not; period; end of story; all stop." Citing even a single fake case can be sanctionable because "no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that" a lawyer has not personally "read and verified." …

Although citing fake cases violates Federal Rule of Appellate Procedure 38, Rule 38 alone is not "up to the task" of sanctioning this conduct, because Rule 38 allows only for the imposition of costs and attorneys' fees. But we think other sanctions are also appropriate, so we employ our inherent authority….

Although Irion and Egli did not seriously respond to our show cause order, we construe their responses as making four objections: (1) the show cause order violated Sixth Circuit Local Rule 46, (2) attorney-client and work-product privilege excused compliance with the show cause order, (3) the order was invalid because it allegedly came from several ex parte communications, and (4) the order is void because the clerk signed it.

The show cause order did not violate Local Rule 46. Local Rule 46 governs suspension, disbarment, and other forms of attorney discipline. But the rule expressly contemplates that this court could impose litigation sanctions and "does not limit the court's" power to do so. Id. The show cause order cited Federal Rule of Appellate Procedure 38 and Chambers v. NASCO, Inc. (1991), which govern sanctions for a frivolous appeal and inherent authority sanctions, respectively. Put simply, the show cause order did not initiate disciplinary proceedings under Local Rule 46, nor do we impose discipline under that rule. Instead, we exercise our inherent authority and our powers under Rule 38 to sanction Irion and Egli for bad-faith litigation conduct….

Our order does not violate the work-product or attorney-client-privilege doctrines, either. Under those doctrines, we may not compel the disclosure of a lawyer's notes, prior drafts of briefs, or legal advice absent waiver. But the order to show cause sought no such thing. Whether and how the briefs were cite-checked does not implicate conversations regarding legal advice, nor do they ask for any work product of any kind.

Finally, our orders are not invalid simply because the clerk signed them. We have already told Irion and Egli that our orders are not void when the clerk signs them in this very case. Whiting v. City of Athens (6th Cir. June 2, 2025). And the Supreme Court has twice denied petitions for mandamus from Irion and Egli demanding that the clerk stop signing our orders. See In re Murphy (2025); In re Irion (2026). Neither Irion nor Egli points us to any authority saying that the clerk may not sign our orders….

Irion and Egli breached the trust that we must have in the lawyers appearing before us. They have brought the profession into disrepute. Irion's and Egli's failure to comply with the basic rules of our profession has forced us and the City to unnecessarily expend time and resources on a case that should have been litigated and resolved straightforwardly but was not.

More importantly, by breaching our trust, we can no longer rely on the representations in Irion's and Egli's briefs, harming both their clients (whose cases are now viewed with skepticism) and this court (who must now independently verify everything Irion and Egli write). Finally, Irion and Egli have sullied the reputation of our bar, which now must litigate under the cloud of their conduct. We therefore issue these sanctions to Irion and Egli, the rationales for which we will explain below:

1. Irion and Egli must jointly and severally reimburse appellees in full for their reasonable attorneys' fees on appeal in all three appeals.
2. Irion and Egli must jointly and severally pay double costs to appellees for costs incurred under 28 U.S.C. § 1920 on appeal in all three appeals.
3. Appellees must file an accounting of their costs and attorneys' fees on appeal, with supporting documentation, no later than seven days from the date of this order. Irion and Egli shall file any responses or objections to appellees' requests for costs and attorneys' fees on appeal no later than seven days thereafter. There will be no replies.
4. Irion and Egli must each separately and individually pay $15,000 to the registry of this court as punitive sanctions for the proceedings in this court in all three appeals.
5. The clerk will forward a copy of this order to the chief judge to consider disciplinary proceedings under Sixth Circuit Local Rule 46.
6. If Irion and Egli are financially unable to comply with some or all of the requirements of this order, they must file an affidavit under seal describing their financial situation along with their objections to appellees' fee requests.

{We could have gone much further. Other courts have dismissed cases, disqualified lawyers, or revoked their pro hac vice status for similar conduct. But only the chief judge can suspend or disbar a lawyer from practice before this court, see 6th Cir. Local Rule 46(c)(4)(C), so those sanctions are not available to us, and we choose not to sanction Whiting himself because we have no evidence that Whiting participated in the misconduct.

Finally, we could have held Irion and Egli in contempt because they flagrantly ignored our order to show cause. But we do not think additional sanctions are necessary to send the message we send here.}

A substantial penalty is necessary to compensate the City for the time spent dealing with Whiting's litigation and for having to deal with the rampant misconduct Irion and Egli committed on appeal. Although courts often limit the amount of fees to "those the losing party foisted on the winner," the pervasive misconduct makes these appeals almost entirely frivolous. We found systemic problems with Whiting's briefing, including misrepresentations of fact and law, improper citation formatting, an inadequate record, and copious drafting errors. Even if there might have been a grain of merit in these appeals, we can disregard the non-frivolous aspects and treat the entire appeal as frivolous. Given how many problems there were in this case, we conclude that appellees should be fully compensated for being forced to litigate this appeal.

We award double costs to appellees because that is the stiffest penalty available under Rule 38. Rule 38 is supposed "to deter frivolous appeals and thus preserve the appellate calendar for cases worthy of consideration." Double costs will send the loudest message that this type of conduct is not allowed in our court or any other.

We can issue fines when issuing inherent authority sanctions, Shepherd, 62 F.3d at 1475, and courts have generally issued fines for similar misconduct. We agree that this is appropriate. Citing fake cases "unnecessarily burdens the court and the taxpayers," so courts can and should fine the offending lawyers to reimburse the court for its time. A lawyer's misrepresentation of the law and facts heavily burdens the courts and their staffs.

We rely on good briefing to narrow and clarify the issues for our review while helping us locate the facts and the law that will govern the case. But we did not have that assistance from Whiting's counsel because we could not rely on any of their briefing to truthfully explain the facts and governing law. Their submission of fake cases and factual misrepresentations forced the court to individually verify every single citation to determine the appropriate sanction.

To call these consolidated appeals a burden would be an understatement. We choose $15,000 each because (1) the misconduct was spread across three cases instead of just one and (2) smaller fines have plainly been inadequate—as is evidenced by the continuous stream of cases raising the same problems.

Four additional aggravating factors in this case warrant particularly harsh sanctions

First, Irion and Egli are appealing sanctions orders, and they have engaged in further misconduct….

Second, Irion and Egli have been disciplined for lack of candor to the tribunal before. In 2017, the Supreme Court of Tennessee publicly censured Egli for lack of candor to the tribunal. See In re Egli, No. M2017-00608-SC-BAR-BP (Tenn. Mar. 30, 2017) (per curiam). And in August 2025 (while Irion and Egli were briefing these appeals), Irion was suspended from the Eastern District of Tennessee for five years because he lied to the district court in No. 25-5424. In re Irion, 2025 WL 2319537, at *13, *37. Despite this, both Irion and Egli submitted several briefs to this court with fake citations and misrepresentations of the record.

Third, Irion and Egli defied this court's order to show cause and refused to provide the information we requested. For over 150 years, the Supreme Court has said that litigants must comply with court orders, whether they are erroneous or not….

Fourth, the responses to the show cause order that Irion and Egli did file show a stunning lack of respect for this court, the members of the panel and their staffs, and the rule of law. Most litigants caught submitting fake cases have apologized and sought forgiveness, rightly recognizing the seriousness of their misconduct. By contrast, Irion and Egli scolded this court and accused it of engaging in a vast conspiracy to harass them. More severe sanctions are clearly warranted to deter misconduct like this….

The courts are, should be, and must be, open to all litigants who have suffered harms at the hands of the government. And nothing in this opinion should be construed as a holding that Irion and Egli were appropriately sanctioned simply because they lost. That is far from the truth.

Irion and Egli have engaged in a coordinated effort to harass the City of Athens, Tennessee, and its employees through non-stop litigation over the past five years. They asserted claims that they knew were meritless to drain the resources of the City. They then compounded the problems by submitting briefs to this court with fake citations and factual misrepresentations and defying the order to show cause why they should not be sanctioned. To protect the integrity of our proceedings, we take the measures outlined [above]….