Another AI Misuse Sanction

The Utah Court of Appeals has sanctioned an attorney for citation to AI-generated nonexistent cases

Petitioner’s counsel filed a timely petition for interlocutory appeal (the Petition). Respondents’ counsel filed a timely opposition to the Petition. In the opposition to the Petition, Respondents’ counsel identified multiple cases cited by Petitioner’s counsel that were miscited or appeared to have been created by artificial intelligence (AI). Respondents’ counsel noted, “it appears that at least some portions of the Petition may be AI-generated, including citations and even quotations to at least one case that does not appear to exist in any legal database (and could only be found in ChatGPT[1]) and references to cases that are wholly unrelated to the referenced subject matter.” As the primary example, Respondents’ counsel pointed to the citation to “Royer v. Nelson, 2007 UT App 74, 156 P.3d 789” as an AI “hallucinated” case that does not exist anywhere other than on ChatGPT.

Concession

Petitioner’s counsel acknowledged that the Petition contained fabricated legal authority, which was obtained from ChatGPT, and they accepted responsibility for the contents of the Petition. Petitioner’s counsel explained that the Petition had been prepared by an unlicensed law clerk, employed by their law firm, who used ChatGPT in the drafting of the Petition. Mr. Durbano was not involved with the drafting of the Petition and Mr. Bednar did not independently check the accuracy of the Petition before signing and filing it with the court. Petitioner’s counsel were not aware that the law clerk was using ChatGPT in the preparation of their firm’s legal work, and they acknowledged that the use of AI had not been previously addressed at their firm, either formally or informally. Petitioner’s counsel explained that their law firm did not have any policy in place addressing the use of AI but that they had initiated one since receiving notice of the OSC proceeding.

With technology advances comes danger

We agree that the use of AI in the preparation of pleadings is a legal research tool that will continue to evolve with advances in technology. However, we emphasize that every attorney has an ongoing duty to review and ensure the accuracy of their court filings. In the present case, Petitioner’s counsel fell short of their gatekeeping responsibilities as members of the Utah State Bar when they submitted a petition that contained fake precedent generated by ChatGPT.

Rule violation

Here, the Petition failed to comply with rule 40. A fake opinion is not “existing law” that can support a party’s legal contention. Id. R. 40(b)(2); see also Mata, 678 F. Supp. 3d at 461 (“A fake opinion is not ‘existing law’ and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law, or for establishing new law.”). And the signature of Mr. Bednar on the Petition served to “certif[y] that to the best of [his] knowledge formed after an inquiry reasonable under the circumstances,” the “legal contentions are warranted by existing law.” Utah R. App. P. 40(b). Mr. Bednar admits that he failed to comply with rule 40.

Sanction

(1) Mr. Bednar shall pay the attorney fees of Respondents for the time spent responding to the Petition and attending the OSC hearing;

(2) Petitioner’s counsel shall refund to Petitioner all fees charged and paid for the filing of the Petition or related thereto within seven days of the date of this order; and

(3) Mr. Bednar shall pay $1,000 in the form of a donation to “and Justice for all” within fourteen days of the date of this order and file proof of payment with this court.

(Mike Frisch)