In the last few years, we\u2019ve heard case after case where attorneys used generative AI and were caught including fake citations, quotes, and other major errors in their filings. This generally plays out in dockets, where their opponents or judges spot them and, in the polite language of the courts, scold them for wasting everyone\u2019s time and being a disgrace to the legal profession. Sometimes, this results in serious sanctions. But it’s always entertaining to read.In an appeal hearing last month, a court\u2019s live stream captured this happening on camera in real time, with an attorney caught for likely using AI-fabricated citations. On May 20, in the Supreme Court of the State of New York Appellate Division, Justices Valerie Brathwaite Nelson and Hector LaSalle reamed out that lawyer and his opposing counsel for more than 20 minutes, calling the situation \u201cstriking, concerning, disappointing, and saddening.\u201dThe plaintiff in the case, Judith Landberg, is suing the city of New York after she tripped on some askew bricks on the sidewalk that were pushed up by tree roots. In that hearing, her lawyer, Michael Sanders, was attempting to argue the definition of a sidewalk. The full video is here, and the portion about fake citations begins a little after the 19 minute mark.\u201cIn preparing for this oral argument and reviewing the brief of appellant, it came to the attention of the court that the brief submitted by plaintiffs cites at least three cases that appeared to be fictitious,\u201d Nelson said. \u201cNone of these cases, nor the quoted language, appears to exist.\u201d\u00a0Not only did Sanders cite cases that don\u2019t exist, Nelson said, he cited 10 other cases that appear to misrepresent the law. \u201cHow do you respond?\u201d Nelson asked.<\/p>\n
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Sanders instantly started digging a hole, saying that he wasn\u2019t prepared to speak on those specific citations. Nelson promptly cut him off. \u201cBefore you go any further,\u201d she said, \u201clet me point out to you that Rule 3.3 A of the rules of professional conduct indicates that 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.\u201dHe stammered. \u201cIf there’s any citations that are incorrect, my deepest apologies,\u201d he said.\u201cWhere did you get them from?\u201d LaSalle asked.\u201cI don’t know what these cases were specifically,\u201d Sanders said.LaSalle and Nelson grilled Sanders for several more minutes about the citations and where he got them. The judges didn\u2019t bring up generative AI specifically, but considering the growing epidemic of lawyers including fake citations while using AI to draft arguments and appeals, it\u2019s almost certainly what they\u2019re alluding to. Attorneys caught using AI in other cases have blamed everything from head colds to being in a rush, to paralegals. Judges, in general, seem sick of it.\u201cJust so you know, because I don’t want you to dig a bigger hole here, you’re citing principles that don’t exist,\u201d LaSalle said. \u201cLet me tell you something. We saw this last week. I was hopeful that, in preparation for today, that you were going to read this and say, ‘Oops, we made a mistake, Judge.\u2019 It happens sometimes, right? That’s what I was hoping for. We didn’t get that. Should we give you some time right now to go look these cases up?\u201d\u00a0<\/p>\n
Sanders replied that it would probably take longer than 15 minutes. They went back and forth, with LaSalle and Nelson taking turns trying to impress upon Sanders that this is very, very bad.Ross Friscia, the attorney representing the owner of the property that faces the sidewalk, stood up before the judges next. He started to speak, but LaSalle wasn\u2019t finished with the dressing-down. \u201cHe\u2019s raising a court of appeal standard that doesn\u2019t exist,\u201d LaSalle said, interrupting Friscia. \u201cHe was using it as a component of his argument, and you didn’t think you should bring it to our attention?\u201d\u201cI didn’t notice in particular that the principle of law that he was citing was incorrect,\u201d Friscia said.\u00a0\u201cI’m sorry, I’m going to give you every opportunity to make your argument,\u201d LaSalle said. \u201cBut I’m befuddled. I honestly am. I’m absolutely\u2014and I’m not here to\u2014lawyers make mistakes. It’s not an easy profession. I don\u2019t want to sit here beating up on lawyers, but we rely on the bar so much in what we do. So the first thing that I did, I don’t want to speak for my colleagues, but after seeing what he wrote, when I went to your papers, I expected to see something referencing […] It wasn’t one case, counsel, it was several cases, and you didn’t see fit to bring it to our attention either. It’s just striking to me.\u201d\u00a0Friscia, now with the fear of the bar in him, apologized profusely. \u201cYour honor, I apologize to the court. I will do further due diligence going forward from this point on.\u201d\u201cI hope so,\u201d LaSalle said. \u201cYou should apologize to your client, not to me.\u201d\u201cYes, I apologize for that,\u201d Friscia said. \u201cAnd I will, going forward, check every single case, even if it stands for, you know, general principles of law, like the construed liberally to effectuate remedial purpose, and things like that. I will bring them to the court\u2019s attention.\u201dAt this, Nelson jumped in: \u201cThe misrepresentations here are of such a degree that they could not merely reflect a difference of opinion,\u201d she said. \u201cAs an appellate court attorney, you would have to, if you were doing the work and reading the briefs and responding to the briefs, you would have to notice that something in the wording of the main brief for the appellant was wrong, if not many things being wrong. It’s concerning because we are all officers of the court, and there is a responsibility that you also have to notify the court to do the work, notify the court when these types of misrepresentations and fictitious cases and fictitious citations and misrepresenting the holding of a court of appeals case. I could go on and on, but if you read the brief and looked at the cases, you would have realized it was your responsibility also to alert the court.\u201d\u00a0Friscia said he tailors briefs to respond to specific issues but didn\u2019t keep explaining himself for long; he apologized again, repeated that he\u2019d be more thorough next time, made his point about the city being responsible for the askew bricks, and sat down.<\/p>\n
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Next up was Elizabeth Freedman, an attorney representing the City of New York. She got the same questioning from Nelson: \u201cSo, how do you explain your failure to bring to the attention of this court that a brief was filed with this court by appellant’s counsel with apparent fabrications and misrepresentations?\u201dFreedman tried to explain. \u201cI certainly read the briefs,\u201d she said. \u201cI certainly read all of the briefs here, but I certainly didn’t focus on it, because it was not our issue. And I do apologize to the court for not catching that, but I tended to focus more on the issue of prior written notice.\u201dWhen Freedman finished, all of the attorneys stood up and attempted to leave quickly. \u201cDon\u2019t go anywhere yet,\u201d LaSalle said. \u201cHave a seat. I just want to say this to you all. This is a very distressing situation. I know this is an outlier. We’re very fortunate, my colleagues and I, we have the privilege of working with what I think is one of the best benches in the state, the bars in the state. For me the appellate bar here in the city of New York and its surrounding suburbs, we see excellent work. For me personally, it’s been a highlight of my career to have the opportunity to work with such outstanding judges, and to have the opportunity to work with such outstanding lawyers,\u201d he said. \u201cA part of this profession, a big component of it, is that there’s an element of trust, and mistakes are made. We make mistakes as judges, we’ve made mistakes. I don’t want to speak for my colleagues, but I dare say that we’ve all made mistakes as practitioners, and we work very hard when there are mistakes to try to give the benefit of doubt to those lawyers who practice before us. We know how difficult your respective jobs are. And in reviewing this, I know my colleagues and I have tried to give every benefit of the doubt to the lawyers before us.\u201d\u00a0He went on to say that the citing of false cases that don’t exist and quotes that have no support in the law is \u201cwell below the standard we expect from the bar.\u201d He said it\u2019s \u201cstriking, concerning, disappointing, and saddening to think that members of the bar would forward cases to a court that don’t exist, and to think that the lawyers on the other side of that didn\u2019t read it for whatever reason, didn\u2019t check it.\u201d\u00a0Sanders got up and tried to apologize again before leaving. \u201cYou\u2019ll have an opportunity to apologize in a different way,\u201d LaSalle said. \u201cWhy don\u2019t you do your research and find out how that happened, though?\u201d\u00a0Sanders and his law firm were ordered to show cause as to why they shouldn\u2019t be sanctioned. On Wednesday, Landberg\u2019s case was dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"