5th Circuit Throws Down on Use of AI

The U.S. 5th Circuit Court of Appeals (whose rulings apply to all Texas employers) brought the hammer down on February 18 in an opinion written by Chief Judge Elrod. Glad I was not the nail.

Show-cause order issued

What is a show-cause order? It’s an order issued by a court to a lawyer essentially saying, “We are about to sanction you, so please tell us why we should not.” The offense at issue: use of AI in a legal brief that created 16 fabricated quotations and five additional serious misrepresentations of law or fact. The lawyer did so in a brief to the court. In a chilling sentence, the judge wrote: “[Her] response was disappointing.”

I won’t go through how the court set out the failures, but I will give you the bottom line:

The court finds that [the lawyer] used artificial generative intelligence to draft a substantial portion—if not all—of her . . . brief and failed to check the brief for accuracy. [To make matters worse,] it is also likely that she used artificial generative intelligence in her response to the show-cause order. Had [she] accepted responsibility and been more forthcoming, it is likely that the court would have imposed lesser sanctions. However, when confronted with a serious ethical misstep, [she] misled, evaded, and violated her duties as an officer of this court.

What’s the big deal?

Courts want to make the correct decision. To do so, they need the help of lawyers who correctly cite the law. But a brief full of “AI-hallucinated” citations does not do so. The court and the other litigants must then pick through the brief, separating the real from the fake, wasting time, resources, and money.

The monetary sanction in this case: $2,500 to be paid by the lawyer.

The hit to the lawyer’s reputation: incalculable.

The harm to the client: immeasurable because the court will always doubt what their lawyer is saying even if the lawyer changes her ways.

Because we are on the verge of March Madness, a quote from the great coach John Wooden seems in order: “If you don’t have time to do it right, when will you have time to do it over?”

Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@untdallas.edu.

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