Plaintiff sued defendant in federal court but the court eventually dismissed the case because plaintiff continued to fail to properly respond to defendant’s discovery requests. So plaintiff sought review with the Second Circuit Court of Appeals. On appeal, the court affirmed the dismissal, finding that plaintiff’s noncompliance in the lower court amounted to “sustained and willful intransigence in the face of repeated and explicit warnings from the court that the refusal to comply with court orders … would result in the dismissal of [the] action.”
But that was not the most intriguing or provocative part of the court’s opinion. The court also addressed the conduct of plaintiff’s lawyer, who admitted to using ChatGPT to help her write a brief before the appellate court. The AI assistance betrayed itself when the court noticed that the brief contained a non-existent case. Here’s the mythical citation: Matter of Bourguignon v. Coordinated Behavioral Health Servs., Inc., 114 A.D.3d 947 (3d Dep’t 2014).
When the court called her out on the legal hallucination, plaintiff’s attorney admitted to using ChatGPT, to which she was a “suscribed and paying member” but emphasized that she “did not cite any specific reasoning or decision from [the Bourguignon] case.” Unfortunately, counsel’s assertions did not blunt the court’s wrath.
“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,” read the court’s opinion as it began its rebuke. It reminded counsel that the rules of procedure impose a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are legally tenable. “At the very least,” the court continued, attorneys must “read, and thereby confirm the existence and validity of, the legal authorities on which they rely.” Citing to a recent case involving a similar controversy, the court observed that “[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.”
The court considered the matter so severe that it referred the attorney to the court’s Grievance Panel, for that panel to consider whether to refer the situation to the court’s Committee on Admissions and Grievances, which would have the power to revoke the attorney’s admission to practice before that court.
Park v. Kim, — F.4th —, 2024 WL 332478 (2d Cir. January 30, 2024)
See also: