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The Sixth Circuit Court of Appeals recently sanctioned two lawyers over $100,000 for citing hallucinated cases in their appellate briefs.
The Court says the briefs “repeatedly misrepresented the record, cited non-existent case, and cites cases for propositions of law that they did not even discuss, much less support.” The Court sanctioned the lawyers under both Federal Rule of Appellate Procedure 38 and the Court’s inherent authority.
The Court included a string cite of the ever-growing case law on how citing fake cases violates Rule 11: “An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.”
- In a footnote, the court noted that “when AI is used to prepare a brief, AI hallucinations are more likely to occur when there are little to no existing authorities available that clearly satisfy the user’s request—such as, for example, when a lawyer asks a generative AI tool to supply a citation for an unsupported principle of law.”
- In other words, the very existence of a fake case in a brief may indicate that an assertion is meritless. The software has no other option but to make up a cite. “[A]ny reasonable attorney should know that a case is meritless if the only authority on which he can rely is a figment of imagination.”
The opinion is also an example of what not to do when you receive a show cause order. Here, the lawyers challenged the clerk’s authority to issue it, rather than acknowledging any issues with their brief, withdrawing the problematic citations, or apologizing to the Court or opposing counsel.
The Court’s sanctions are the highest we’ve seen yet in this context:
- Both lawyers are jointly and severally liable for all three appellees’ attorneys’ fees for the three appeals.
- The appellees’ attorneys’ fees totaled $26,315.09 for the three appeals.
- Both lawyers are jointly and severally liable for double costs to all three appellees.
- The appellees’ filing indicated that they incurred no costs on appeal.
- Both lawyers must pay the Court of Appeals $45,000 as a punitive sanction for the three appeals.
- The panel referred the two lawyers to the Chief Judge for potential disciplinary proceedings.
Adding this all up, the two lawyers are each facing a joint and severable sanction of $71,315.09, for a total of $116,315.09. This is likely the largest sanction yet for AI-hallucinated briefs.
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