Ambrogi writes
A new decision from the California Court of Appeals adds an intriguing dimension to the growing body of AI hallucination sanctions cases, raising the question of a lawyer’s duty to detect fabricated, AI-generated citations — not in the lawyer’s own filings, but in an opponent’s.
While the court did impose a $10,000 sanction on the attorney who filed two appellate briefs containing fake citations, it also declined to award attorneys’ fees or costs to the opposing counsel, because of counsel’s failure to report the fake citations to the court or even to detect them.
That makes this what may be the first judicial decision to touch on on whether lawyers have a duty to detect and report their opponents’ AI-generated fake citations.
Fabricated Quotations
The basic facts of the case, Noland v. Land of the Free, L.P., follow a now-familiar pattern. The appeal itself, the court said, was “unremarkable,” and would not normally have warranted publication.
But what made the decision worthy of publication, said the court, was the plaintiff’s extensive use of fake, AI-generated citations and quotations. “Although the generation of fake legal authority by AI sources has been widely commented on by federal and out-of-state courts and reported by many media sources, no California court has addressed this issue,” the court said.
The attorney, Amir Mostafavi, used ChatGPT and other AI tools to “enhance” his appellate briefs, then failed to verify the citations before filing. The court found that 21 of 23 case quotations in his opening brief were fabricated, along with many more in the reply brief. Some cases did not discuss the topics for which they were cited, and others did not exist at all.
“Nearly all of the legal quotations in plaintiff’s opening brief, and many of the quotations in plaintiff’s reply brief, are fabricated,” the court said.
Finding that both California’s Code of Civil Procedure and Rules of Court permit an appellate court to impose sanctions for filing a frivolous appeal, the court imposed a sanction of $10,000 to be paid to the court and referred the lawyer to the state bar.
“Attorney Mostafavi’s fabricated citations and erroneous statements of law have required this court to spend excessive time on this otherwise straightforward appeal to attempt to track down fabricated legal authority and then to research the issues presented without plaintiff’s assistance,” the court said.
The Twist: No Fees for Opposing Counsel
Had the court stopped there, this case might seem little different than the hundreds of cases in which lawyers’ use of AI has resulted in filings containing hallucinated citations.
But what makes Noland unique is the court’s explicit decision not to award attorneys’ fees to the opposing counsel, despite finding the appeal frivolous and despite opposing counsel’s request for such an award. The court explained:
“We decline to order sanctions payable to opposing counsel. While we have no doubt that such sanctions would be appropriate in some cases, in the present case respondents did not alert the court to the fabricated citations and appear to have become aware of the issue only when the court issued its order to show cause.”
Although the court did not elaborate beyond that statement, its reasoning raises the question: What is the role of opposing counsel in policing AI hallucinations?
Put another way: What is a lawyer’s responsibility to detect and report an opponent’s use of hallucinated citations?
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