“An attempt to persuade a court or oppose an adversary by
relying on fake opinions is an abuse of the adversary system.”

                                                                             Justice Castel in Mata v. Avianca, Inc.

Upholding the integrity of the legal profession and ensuring public trust in the judicial system are of paramount importance. However, an additional lawyer is now facing disciplinary proceedings because she cited fake cases in a legal pleading. This case has yet again put the spotlight on a serious breach of ethics in the legal community. This case, among others, strikes at the very heart of an attorney’s basic obligation to verify the legal arguments and authorities relied upon in court pleadings. 

In the matter of Park v. Kim, Park’s case was dismissed by the Eastern District of New York pursuant to Rules 37 and 41(b) of the Federal Rules of Civil Procedure, for persistent and knowing violation of court orders. Park appealed. The Second Circuit affirmed. Park v. Kim, 91 F.4th 610 (2d Circuit 2024). 

But the Second Circuit didn’t stop there. Turning to Park’s attorney’s conduct in the appellate case, the court found that she filed a late reply brief on September 9, 2023. The brief cited a fake case. Unable to find the case, the Court ordered her to submit a copy of the decision. She filed a response with the court stating she was “unable to furnish a copy of the decision.” The attorney admitted to using ChatGPT and she did not verify the validity of the decision.  

Citing Rule 11, Fed. R. Civ. P., the court referred the attorney to the Court’s Grievance Panel for the following reasons:

• All counsel that appear before this Court are bound to exercise professional judgment and responsibility, and to comply with the Federal Rules of Civil Procedure. 
• Rule 11 provides that by presenting a submission to the court, an attorney “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2). 
• Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, and legally tenable.
• Under Rule 11, a court may sanction an attorney for, among other things, misrepresenting facts or making frivolous legal arguments.
• At the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the existence and validity of, the legal authorities on which they rely.
• The attorney’s conduct fell below the basic obligations of counsel. 

Let this case serve as a sober reminder of the critical importance of verifying cases that are produced by an AI tool. As officers of the court, lawyers hold a sacred duty to uphold the principles of truth, integrity, and justice. The MSBA has addressed this issue before. See Massachusetts Lawyer Sanctioned for AI-Generated Fictitious Case Citations, MSBA Blog, March 4, 2024,” and “NY Lawyers and Law Firm Sanctioned for Citing Fake Cases Derived from AI,” MSBA Blog, June 28, 2023. The Park v. Kim case and others like it underscore the need for robust self-discipline to read and verify all cases that an AI tool may produce. It would not be wise to blindly cite a case from any of the traditional legal research platforms without first reading it. AI is no different.