From Akerlund v. Atlas Air, Inc., decided yesterday by the Eleventh Circuit, Judge Britt Grant, joined by Judge Robin Rosenbaum and Embry Kidd:
A group of plaintiffs, employees in the commercial aviation business, personally reject their companies' pandemic-era policies on masks, testing, and vaccination. The district court dismissed the third amended complaint for lack of personal jurisdiction and failure to state a claim, and we affirm.
The claims in this case are remarkably weak, at least as pleaded. We are more candid than usual in this assessment because the plaintiffs' counsel Anthony F. Sabatini has not been candid with us. Sabatini filed multiple briefs replete with fake and hallucinated citations. Even after being warned. "Always a bad idea." Chief Justice John G. Roberts, Jr., 2023 Year-End Report on the Federal Judiciary, at 6 (2023). By outsourcing his legal work to an AI algorithm, Sabatini violated his ethical duties to both his clients and this Court….
Though the filings in this case were substandard in a variety of ways [I excerpt some of the substantive analysis below -EV], we have saved the worst for last. The plaintiffs' counsel Anthony F. Sabatini's filings are riddled with citations to nonexistent, "hallucinated" cases. His opening brief relies on at least eight such cases, including one purportedly decided by this Court.
After the defendants identified this problem, Sabatini acknowledged in his (untimely) proposed reply brief that those citations were "erroneous or unverifiable," and sought to withdraw his reliance on eight listed cases. At this point, things go from bad to worse: the eight cases Sabatini "withdrew" did not match a single one of the eight hallucinated cases in his opening brief. And not only were they not the right cases—all eight were also hallucinated.
We are far from the first court to see lawyers uncritically rely on artificial intelligence software and submit briefs citing nonexistent cases. The typical response when this kind of violation is identified is some version of an apology from the attorney, often with sanctions to follow. It is rare to see the kind of blatant and repeated misconduct that Sabatini has committed in this case.
The first rule of our profession is that a lawyer "shall provide competent representation to a client"—"competent" in the sense that it requires "legal knowledge, skill, thoroughness and preparation." It goes without saying that completely outsourcing one's legal work to artificial intelligence software is not competent. Doing so is a dramatic violation of the client's interests.
But it does not stop there, because lawyers are also officers of the Court. We expect that when lawyers submit briefs, they give us their best view of what the law is, and how that law supports their clients. We read those briefs carefully—not just because they are the product of counsel's time, effort, and skill, but because they help us as we try to reach the right answer. All that is lost if a lawyer decides that it is not worthwhile to do the work to persuade us—if he is willing to sign his name on whatever a machine churns out without so much as checking it for accuracy. We cannot do our job the same way unless lawyers do theirs.
Whatever the merits of artificial intelligence, it is no substitute for actual intelligence. Any "use of AI requires caution and humility." When lawyers rely on AI tools, there is no way to get around the obligation to verify that the software got it right, and that what it got wrong will not end up in court filings.
{AI algorithms are notorious for producing "outputs that echo users' opinions and beliefs, even when those views are incorrect." This tendency presents a particular danger in legal filings, as one of a lawyer's chief duties is to give his clients a clear-eyed view of whether the law says what the client wants it to say.}
By signing his name on briefs filled with hallucinated citations—not once but twice—Sabatini violated his professional obligations, both to his clients and to this Court. If he thinks these claims are not worth the effort, he should either tell his clients they fall short or advise them to hire another lawyer—not file obviously insufficient pleadings and briefs generated by AI tools. In a separate order, this Court, through the Chief Judge, will refer the matter to the Committee on Lawyer Qualifications and Conduct.
