It had to happen.
A federal district court judge discovered hallucinated cases in briefs filed by both sides in a case. In a well-written and documented 23-page opinion (in which I doubt there are any hallucinations), she disqualified from the case both the out-of-state drafters of the briefs containing the fictitious cases and both local counsel who didn’t verify the cites before filing. The case is Withers v. Aberdeen and is pending in the Northern District of Mississippi before Judge Sharion Aycock.
The opinion is a primer of much of the law regarding hallucinations and is a road map for lawyers on what not to do in the age of AI. The court used its powers under Rule 11 — which governs attorney conduct and provides sanction authority for violations — its inherent power as a court to punish those who act in bad faith and its local rules in determining the sanctions.
As the court put it, the “practice of blindly relying on technology resulted in the hallucinatory citations … [The] acts of relying on AI output without verification alone supports a finding that they acted in bad faith.”
Here’s What Happened
The parties to the case were both represented by out-of-state counsel whom the judge had admitted pro hac vice. Both sides were also represented by in-state counsel. The out-of-state counsels prepared the briefs in issue without verifying the citations. The local counsels signed and filed the briefs without verifying the citations.
The judge herself (or perhaps her clerk) discovered the hallucinated cases. Something you never want to happen by the way: hell hath no fury like a pissed-off federal judge.
The judge summoned all the lawyers before her for a show cause hearing. As expected, once caught, the lawyers all profusely apologized and said sorry, your honor, won’t happen again. All lawyers admitted to violating Rule 11. But it was their other admissions during the Hearing that further brought the court’s wrath.
What Not To Do
If you’re an AI-using lawyer, you better read Judge Aycock’s opinion. I don’t think it could be much worse.
One of the out-of-state lawyers said she had been using some unspecified AI tool for about six months. Her defense was that she didn’t know AI could hallucinate. You can imagine how that went over: “The court finds that explanation to be insufficient and incredulous.”
Her argument became even more incredible when she admitted she had filed other pleadings with the court that contained undiscovered fictitious cites. And when the court learned she had cited hallucinated cases in pleadings filed in other jurisdictions even after the hallucinated cases were found in this case. Lastly, the court also noted that rather than own up to it, she let her local counsel, who didn’t prepare any of the pleadings, take the lead in rectifying the fictitious cases.
The out-of-state lawyer for the other side said her firm did have an AI policy that required all citations to be verified. The court found it particularly egregious that as a “partner and leader in her firm,” she disregarded the policy.
Her defense was first that she used an AI tool that the firm had purchased that would research cases in three other jurisdictions but not Mississippi. Then she contradicted herself and said the tool did include cases from jurisdictions in a “region” which included Mississippi. Aycock didn’t buy it.
She then tried another tack: while the cases cited didn’t exist, the principle for which they stood was valid. A no harm, no foul defense. Also didn’t impress Aycock.
And she didn’t help herself by misrepresenting her schedule in an effort to presumably try to avoid the hearing the judge demanded on the hallucination issues.
As for the local counsel, one said he didn’t read the brief before signing much less verify the cites. The other said he read the brief but didn’t verify the cites. Neither knew that the out-of-state lawyers had used AI. Both said they didn’t use AI.
The Sanctions
The court found the two out-of-state lawyers acted in bad faith and violated Rule 11. She yanked their pro hocs and barred them from appearing in any case in her district for two years. She fined one $2,500 and the other $3,500. And she plans to provide copies of her order to the other jurisdictions in which the one lawyer had also filed pleadings containing hallucinations.
Perhaps taking into account the role of local counsel and the pressure they can be under, the court found that neither acted in bad faith but were both careless and negligent. She found that both had violated Rule 11 and a local rule that holds the in-state lawyer responsible for the conduct of the proceeding before the court.
She ordered these lawyers to each pay a $1,000 fine and disqualified them from the case.
Lastly, she referred all lawyers to appropriate bar disciplinary authorities.
Lessons Learned
One thing I learned in my years of practice is that you don’t fuck with federal judges. They will come down on you like a ton of bricks as Aycock’s order indicates.
This case is, indeed, a textbook example of what not to do and underscores the seriousness of hallucination scandals. The truth of the matter is that any lawyer who uses AI to help prepare any pleading must verify all citations. No lawyer can safely assume that any citation in any pleading prepared by someone else is true and correct and not verify it. It doesn’t matter if you’re just local counsel.
Any claim a lawyer doesn’t know AI can hallucinate will be scoffed at, as it should be. And for God’s sake, if your firm has an AI policy, you better follow it.
These are facts of life irrespective of how much time verification takes. And even if it means more time being spent than the use of AI saves.
Beyond that, telling half-truths and even lies to any court never works. Frankly, I’m surprised the lawyers, particularly the out-of-state ones, weren’t fined more.
Withers v. Aberdeen. Every lawyer should read it. And heed it.
Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.
