When are lawyers going to learn? You cannot use the commercially available generative AI tools to do legal research. That’s not what they’re designed to do. And if you try, then the algorithm is likely to hallucinate fake cases to satisfy the query. That’s bad for you. Courts are unlikely to be sympathetic to making up cases or authorities. Especially not when there are so many high-profile instances of exactly this.
The Second Circuit has referred attorney Jae S. Lee to a grievance panel for citing a fake case made up by ChatGPT in a complaint and never checking to see if the case spit out by the AI was real.
Law360 details how Lee came to use the fake case in the filing:
“I encountered difficulties in locating a relevant case to establish a minimum wage for an injured worker lacking prior year income records for compensation determination,” Lee explained to the court when pressed to provide the missing case.
“Consequently, I utilized the ChatGPT service, to which I am a subscribed and paying member, for assistance in case identification,” she wrote, as described in the decision. “ChatGPT was previously provided reliable information, such as locating sources for finding an antic furniture key. The case mentioned above was suggested by ChatGPT, I wish to clarify that I did not cite any specific reasoning or decision from this case.”
The panel found attorneys have — as a bare minimum — a responsibility to read the cases they cite. “The brief presents a false statement of law to this court, and it appears that attorney Lee made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented,” the panel wrote.
And while rules specific to AI might be nice, they aren’t required to find an ethical lapse. “But such a rule is not necessary to inform a licensed attorney, who is a member of the bar of this court, that she must ensure that her submissions to the court are accurate,” the panel said.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.