In this action the United Court of Appeals, Second Circuit said it would "separately address the fact that Plaintiff's attorney [Counsel] admitted citing a non-existent state court decision in her reply brief to this Court."
Counsel told the Circuit Court that she relied on a generative artificial intelligence tool, ChatGPT, to identify precedent that might support her arguments and did not read or otherwise confirm the validity of the (non-existent) decision she cited. The Circuit Court said "Because this conduct falls well below the basic obligations of counsel, we refer [Counsel's name] to the Court’s Grievance Panel, and further [order Counsel] to furnish a copy of this decision to her client."
The Circuit Court noted a District Judge of the Second Circuit recently held when presented with non-existent precedent generated by ChatGPT, “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. An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.”*
In the words of the Circuit Court, "[Counsel’s] submission of a brief relying on non-existent authority reveals that she failed to determine that the argument she made was 'legally tenable.' Cooter & Gell, 496 U.S. at 393. The brief presents a false statement of law to this Court, and it appears that [Counsel] 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 Circuit Court opined "If a lawyer chooses to employ technology in representing a client, the lawyer continues to be bound by the requirements of Federal Rule of Civil Procedure 11, Local Rule AT-3, and all other applicable standards of practice and must review and verify any computer-generated content to ensure that it complies with all such standards.”
* See Mata v. Avianca, Inc., No. 22CV01461(PKC), 2023 WL 4114965 at 12 (S.D.N.Y. June 22, 2023).
Click HERE to access the Circuit Court's opinion posted on the Internet.