In the age of artificial intelligence and expanding technology, the advancements are endless, but does AI have the capacity to practice law? The apparent answer is no, at least not without exhaustive checking by an attorney.

On June 22, 2023, a Federal District Judge in New York sanctioned two attorneys and their law firm, jointly, because one attorney, who was not licensed to practice law in the New York Federal Court, relied on responses from ChatGPT with made-up case law and citations in preparing his response to a motion to dismiss, and the other attorney, who was licensed to practice in the New York Federal Court, blindly submitted the response and future filings without reviewing to ensure the case law and citations were valid. The Judge’s ruling in this matter clearly identifies why reliance on AI for the practice or law or guidance on legal precedent is not a promising idea.

In Roberto Mata v. Avianca, Inc., Schwartz, Mata’s attorney, originally filed the case in State Court. Once the case was moved to Federal Court, LoDuca, another attorney with Schwartz’s firm, filed a notice of appearance as the managing attorney because Schwartz was not licensed to practice in Federal Court. LoDuca filed documents researched and prepared by Schwartz, though chose not to review the filings for substance and simply looked over the documents for flow of the writing. Instead of performing the legal research himself, Schwartz used an AI chatbot, ChatGPT.

The specific issue being briefed in the Mata case was whether the statute of limitations under the Montreal Convention was tolled or extended by federal bankruptcy filings. After failing to find federal bankruptcy and Montreal convention caselaw in his firm’s limited legal research database, Schwartz made multiple inquiries on ChatGPT regarding whether the statute of limitations was tolled, requesting caselaw supporting ChatGPT’s answer, and requesting more case law citing that notion. In response to these inquiries, ChatGPT provided cases, citations, quotes, and snippets of the opinions for those cases. However, Schwartz failed to recognize and ChatGPT did not tell him that these cases were fabricated. Schwartz blindly relied upon ChatGPT’s answers and drafted a response to the opposing party’s motion to dismiss.  LoDuca, after reviewing the response for the flow of the writing, signed his name to the document and filed it.

Opposing counsel responded, pointing out to LoDuca and the Court that the caselaw LoDuca cited either did not exist of did not stand for the propositions stated. When opposing counsel requested the Court order LoDuca to produce copies of the cases cited, LoDuca falsely stated that he was on vacation and needed an extension to produce the cases. In fact, Schwartz, the attorney responding to the request, was the one that was out of town. The response and affidavit LoDuca filed with the Court only attached excerpts from the cited cases and stated one case could not be found. The affidavit was drafted by Schwartz and signed and filed by LoDuca after little review.

After receiving LoDuca’s affidavit, the Court issued an order to show cause, initiating sanctions proceedings against LoDuca. In response to the Court’s Order, LoDuca’s filed an affidavit that identified Schwartz as performing the work.  The Court then initiated sanctions proceedings against Schwartz and the law firm, as well.

The Court determined that LoDuca acted in ‘bad faith’ when filing his reply and affidavit, and lying to Court about being on vacation.  The Court expected that LoDuca would have checked ‘on his own’  whether any aspect of the assertions of law were warranted by existing law, even though LoDuca has been a colleague of Schwartz for more than 25 years. The Court also determined that Schwartz, even though he never made an appearance as counsel for Mata, acted in bad faith when he misrepresented the extent her relied on ChatGPT to do his research and failing to further research the whereabouts about one particular case that Schwartz suspected was bogus.

The Court ordered $5,000 in monetary sanctions jointly against LoDuca, Schwartz, and the law firm, and ordered them to provide a copy of the Court’s opinion and order, the transcript of the sanctions proceedings, and a copy of the filing at issue to their client and each judge listed as an author on the made-up cases. In determining what types of sanctions should be imposed, the Court took into consideration that LoDuca’s firm had already implemented mandatory continuing legal education for all attorneys about the use of AI programs and technological competence.

Although this case took place in New York, it implicates the legal field as a whole and acts as an example of how the use of AI tools can be a detriment rather than a benefit in certain circumstances. Something that may hit closer to home for those of us in Texas, Judge Brantley Starr, a Federal Judge for the Northern District of Texas, issues an order to all attorneys and pro se litigants with cases in his court, requiring they sign a Certificate Regarding Generative Artificial Intelligence. In the certificate, the attorneys and pro se litigants certify that they will not use generative AI to prepare any filings or portions thereof or, if generative AI is used, a human being will check the accuracy of the filing using traditional research means.

AI may be the future in many ways, but, at least for now, it seems lawyers’ jobs are safe from being taken over by computers.  If you should have any questions about the legal implications of AI on your organization, please contact the attorneys in our Austin or Dallas office as info@gstexlaw.com.

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