Second Chance Muffed In AI Misuse

I don’t often advise the readership of matters unless I have located them through original research.

But I just saw a United States District Court for the Central District of California Special Master decision reported at The Volokh Conspiracy that – in particular- law professors would do well to consider incorporating into their teaching materials.

Reason for Special Master

In January 2025, the Court appointed me as Special Master in this insurance-related civil action. Central to the reason for my appointment was an ongoing dispute between the parties regarding the insurer’s assertion of various privileges in discovery.

The sad story

Here’s an abbreviated summary of the events. Plaintiff is represented by a large team of attorneys at two law firms (a lawyer moved from the Ellis George firm to K&L Gates during the course of the state court litigation underlying the insurance coverage action; the representation in the present case is shared between the two firms). The lawyers admit that Mr. Copeland, an attorney at Ellis George, used various AI tools to generate an “outline” for the supplemental brief. That document contained the problematic legal research.

Mr. Copeland sent the outline to lawyers at K&L Gates. They incorporated the material into the brief. No attorney or staff member at either firm apparently cite-checked or otherwise reviewed that research before filing the brief with the Special Master. Based on the sworn statements of all involved (which I have no reason to doubt), the attorneys at K&L Gates didn’t know that Mr. Copeland used AI to prepare the outline; nor did they ask him.

A further wrinkle. During my initial review of Plaintiff’s brief, I was unable to confirm the accuracy of two of the authorities that the lawyers cited. I emailed the lawyers shortly after receiving the brief to have them address this anomaly. Later that day, K&L Gates re-submitted the brief without the two incorrect citations – but with the remaining AI-generated problems in the body of the text. An associate attorney sent me an innocuous e-mail thanking me for catching the two errors that were “inadvertently included” in the brief, and confirming that the citations in the Revised Brief had been “addressed and updated.”

I didn’t discover that Plaintiff’s lawyers used AI – and re-submitted the brief with considerably more made-up citations and quotations beyond the two initial errors – until I issued a later OSC soliciting a more detailed explanation. The lawyers’ sworn statements and subsequent submission of the actual AI-generated “outline” made clear the series of events that led to the false filings. The declarations also included profuse apologies and honest admissions of fault. 

AI misuse plus

Yet, the conduct of the lawyers at K&L Gates is also deeply troubling. They failed to check the validity of the research sent to them. As a result, the fake information found its way into the Original Brief that I read. That’s bad. But, when I contacted them and let them know about my concerns regarding a portion of their research, the lawyers’ solution was to excise the phony material and submit the Revised Brief – still containing a half-dozen AI errors. Further, even though the lawyers were on notice of a significant problem with the legal research (as flagged by the brief’s recipient: the Special Master), there was no disclosure to me about the use of AI. Instead, the e-mail transmitting the new brief merely suggested an inadvertent production error, not improper reliance on technology. Translation: they had the information and the chance to fix this problem, but didn’t take it. Cohen, 724 F.Supp.3d at 259.

The nameless

Although it’s necessary to identify some parties involved here, I decline to name-and-shame all of the lawyers in this order. They know who they are, and don’t need further notoriety here.

A cautionary tale to be sure. (Mike Frisch)