2 days ago
Utah attorneys sanctioned by appeals court for using AI to write legal brief
Two Utah attorneys were sanctioned after the Utah Court of Appeals found that they violated procedural rules for lawyers by citing cases that did not exist and appeared to have been created through artificial intelligence.
The court's opinion says this is the first time Utah courts have addressed using AI when preparing legal documents. The judges said in the document that the use of reliable AI tools is not improper in itself, but the Utah Rules of Civil Procedure require attorneys to ensure their filings are accurate.
'The legal profession must be cautious of AI due to its tendency to hallucinate information. While technology continues to evolve, attorneys must verify each source,' the appellate judges said.
Here, it said the attorneys 'fell short of their gatekeeping responsibilities as members of the Utah State Bar' when citing fake cases generated by ChatGPT.
Richard Bednar and Douglas Durban, representing Matthew Garner, filed a petition asking the appellate court to review a decision of the 3rd District Court. When the attorneys on the other side of the dispute responded, they found the petition cited multiple cases that either didn't exist or were not applicable.
In response, those attorneys stated that it appeared the petition could be AI-generated and cited at least one case they could only find by searching ChatGPT. They also stated that the petition contained references that were 'wholly unrelated' to the case.
Bednar, who filed and signed the petition, was ordered not only to pay the opposing party's attorneys' fees for the time spent responding to a petition that included AI, but to refund his own client any fees associated with his filing of the petition. He was also ordered to pay $1,000 to "and Justice for all" a Utah nonprofit that works to provide equal access to justice and courts for Utahns.
The Court of Appeals stated that it reviewed sanctions in other legal jurisdictions for attorneys citing 'hallucinated authority,' and believes the sanctions are appropriate.
A hearing was scheduled for April 22 to give the attorneys the chance to argue why they should not be sanctioned. In a request to amend their petition filed before the hearing, Bednar and Durbano apologized for the errors and offered to pay the other party's attorneys' fees associated with their response.
At the hearing, an attorney representing Bednar and Durbano explained that it was a law clerk who used ChatGPT to create the document, not Bednar; however, Bednar mistakenly trusted that someone else had checked the citations. The attorney said Bednar does take responsibility, although he was unaware that ChatGPT was being used until after the opposing attorneys brought it to his attention.
He said his clients would voluntarily pay the opposing attorneys' fees to cover their efforts to respond to the petition.
In their May 22 ruling, Utah's appellate judges stated that they appreciate the attorneys' acceptance of responsibility, but the lack of care is still an abuse of the justice system and caused harm. The opinion noted that other attorneys had to spend extra resources to research and judges were required to address this issue instead of other pending cases.
The opinion further states that opposing counsel and Utah's courts cannot be responsible for independently verifying the validity of each citation. 'This court takes the submission of fake precedent seriously,' it said. 'Our system of justice must be able to rely on attorneys complying with their duty.'
The case that included the first instance of AI use in Utah courts is a contract case filed by Matthew Garner against Kadince, a software company in North Ogden. He was a shareholder and employee at the company beginning in January 2016, when he was named chief experience officer.
In his complaint, Garner claims that in December 2019, when he owned 30% of the company's shares, he was told that he would have to relinquish the majority of his shares or his employment would be terminated. He did relinquish the shares but later realized the employees who had threatened him were breaching his employment agreement by threatening to end his employment without giving him three formal written warnings, according to the complaint.
He filed the lawsuit in February 2020.
Kadince denied Garner's claims, asked for his lawsuit to be dismissed and claimed that he breached his contract with them by filing the lawsuit.
Ultimately, the appellate judges denied both Garner's petition for appeal of a discovery issue and attorney fees order — the petition that included inaccurate citations — and his attorneys' request to allow them to file a new petition. The case will continue as if the appeal had not been filed.
