Last month, Judge P. Kevin Castel sanctioned Peter LoDuca and Steven Schwartz for submitting a legal pleading that cited imaginary legal cases that Schwartz received from an Open AI ChatGPT search. Woe to the lawyers who have become unintentionally famous around the world! Judge Castel also sanctioned their law firm Levidow, Levidow & Oberman.
The MSBA first reported on this issue on June 12, 2023, in a blog, “Using ChatGPT for Legal Research. Not so fast!” Schwartz cited a total of six imaginary cases produced by ChatGPT. Upon learning that the cases cited in the pleading were fake, Castel issued an Order to Show Cause. A hearing was held on June 8, 2023.
In the order for sanctions, Castel stated LoDuca and Schwartz “abandoned their responsibilities when they submitted non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT, then continued to stand by the fake opinions after judicial orders called their existence into question.” Finding their actions bad faith, the court said LoDuca and Schwartz did not respond properly when questioned by the judge and opposing counsel about the imaginary cases.
The Court’s order supporting sanctions included the following findings of fact and references to the rules and existing case law:
- Rule 11(b)(2): “By presenting to the court a pleading, written motion, or other paper –whether by signing, filing, submitting, or later advocating it–an attorney or unrepresented party 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...”
- “An attorney violates Rule 11(b)(2) if existing case law unambiguously forecloses a legal argument.”
- “The filing of papers ‘without taking the necessary care in their preparation’ is an ‘abuse of the judicial system’ that is subject to Rule 11 sanction,” citing Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 398 (1990) (Rule 11 creates an “incentive to stop, think and investigate more carefully before serving and filing papers.”
- “Rule 11 ‘explicitly and unambiguously imposes an affirmative duty on each attorney to conduct a reasonable inquiry into the viability of a pleading before it is signed.’” AJ Energy LLC v. Woori Bank, 829 Fed. App’x 533, 535 (2d Cir. 2020)
- Rule 3.3(a)(1) of the New York Rules of Professional Conduct: “A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer...”
- The citing and submitting of fake cases was “an unprecedented circumstance.”
- “An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.”
The Court found that LoDuca and Schwartz acted with bad faith in violating Rule 11, Fed.R.Civ.P. Judge Castel found that LoDuca did not read the cases cited and did not verify on his own whether the law cited in the court pleading was warranted by existing law. The Court also found that LoDuca signed an affidavit under oath that was prepared by Schwartz without reading it because a review of the affidavit would have demonstrated that at least one of the cases cited was a fake case.
Law Firms Beware!
The Court concluded that LoDuca and Schwartz’s law firm was “jointly and severally liable for the Rule 11(b)(2) violations” by LoDuca and Schwartz, utilizing the provisions of Rule 11(c)(1), which states: “[a]bsent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.” LoDuca and Schwartz were ordered to send a letter to each judge that was identified as the author of the six imaginary cases, along with a copy of the court’s order and opinion on sanctions. A fine of $5,000 was imposed jointly and severally on LoDuca, Schwartz, and their firm, Levidow, Levidow & Oberman.
Ethical Reminders
At the end of the day, it is not that Schwartz and LoDuca used Open AI’s ChatGPT for legal research; it is that Schwartz and LoDuca did not attempt to read or verify that the search results were, in fact, real cases and cases that were relevant to the legal issues addressed in the pleading they filed. Indeed, Judge Castel acknowledged this when he noted that good lawyers obtain assistance from many sources, including other lawyers, law students, and databases like LexisNexis and Westlaw. Likewise, lawyers should not blindly accept search results from LexisNexis, Westlaw, FastCase, or any other legal search engine. Lawyers have a legal duty to read and verify the cases they cite, regardless of the source, and ensure “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..." See Rule 11.
Candor Towards the Tribunal
The Maryland Attorneys’ Rules of Professional Conduct have a corresponding rule to the New York rule cited by Judge Castel used to sanction the lawyers and their firm. Under Rule 19-303.3(a), “[a]n attorney shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the attorney...” Id. As noted, AI is a great tool and will change the practice of law, but it is no different than other search engines or legal tools. Exercise caution, and don’t be in such a hurry that you forget your professional responsibilities when relying upon assistance from other lawyers and search engines, including the newly found AI search engines.
A copy of the Court's order can be found here.