In what I believe is a first in a reported federal court of appeals decision, the Second Circuit in Park v. Kim, No. 22-2057 (2d Cir. Jan. 30, 2024) (per curiam) issues sanctions against an appellate lawyer who used ChatGPT to write a reply brief and thereby cited nonexistent case law.
The underlying appeal concerned the district court’s dismissal of an action as a sanction for the plaintiff’s “continually and willfully fail[ing] to respond to and comply with the District Court’s discovery orders.” The panel affirms this order, with just two pages of analysis.
The balance of the opinion concerns an allegation of a Rule 11 violation by the plaintiff-appellant’s lawyer in the Second Circuit. The reply brief filed by that lawyer “cited only two court decisions. We were unable to locate the one cited as ‘Matter of Bourguignon v. Coordinated Behavioral Health Servs., Inc., 114 A.D.3d 947 (3d Dep’t 2014)’ . . . . Accordingly, on November 20, 2023, we ordered [counsel] to submit a copy of that decision to the Court by November 27, 2023. On November 29, 2023, [counsel] filed a Response with the Court explaining that she was ‘unable to furnish a copy of the decision.'”
The appellate lawyer offered further elaboration:
“I encountered difficulties in locating a relevant case to establish a minimum wage for an injured worker lacking prior year income records for compensation determination . . . . Believing that applying the minimum wage to in injured worker in such circumstances under workers’ compensation law was uncontroversial, I invested considerable time searching for a case to support this position but was unsuccessful.
. . .
“Consequently, I utilized the ChatGPT service, to which I am a subscribed and paying member, for assistance in case identification. ChatGPT was previously provided reliable information, such as locating sources for finding an antic [sic] furniture key. The case mentioned above was suggested by ChatGPT, I wish to clarify that I did not cite any specific reasoning or decision from this case.”
The panel, nevertheless, refuses this explanation.
“At the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the existence and validity of, the legal authorities on which they rely. Indeed, we can think of no other way to ensure that the arguments made based on those authorities are ‘warranted by existing law,’ Fed. R. Civ. P. 11(b)(2), or otherwise ‘legally tenable’ . . . . As a District Judge of this Circuit recently held when presented with nonexistent precedent generated by ChatGPT: ‘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.’ Mata v. Avianca, Inc., No. 22CV01461(PKC), 2023 WL 4114965, at *12 (S.D.N.Y. June 22, 2023).”
Accordingly, the panel refers the attorney to “the Court’s Grievance Panel pursuant to Local Rule 46.2 for further investigation, and for consideration of a referral to the Committee on Admissions and Grievances,” and order the attorney to show the panel opinion to her client.
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