Column: Second Circuit Indicates that Rule 11 Covers Relying on Generative AI to Conduct Legal Analysis

Published: April 10, 2024

By Mike Langan

Despite the Southern District of New York’s imposition of sanctions in Mata v. Avianca, Inc., 22-CV-1461, 2023 WL 4114965, at *1 (S.D.N.Y. June 22, 2023) (sanctioning plaintiff’s attorney under Fed. R. Civ. P. 111 for citing, and then submitting copies of, non-existent judicial opinions created by the artificial intelligence tool ChatGPT), several federal district courts across the country have faced a similar problem. See, e.g., Thomas v. Pangburn, 23-CV-0046, 2023 WL 9425765, at *5 (S.D. Ga. Oct. 6, 2023); Morgan v. Community Against Violence, 23-CV-0353, 2023 WL 6976510, at *7-8 (D. N.M. Oct. 23, 2023). Indeed, the Southern District of New York itself again faced the problem. See U.S. v. Cohen, 18-CR-0602, 2023 WL 8635521, at *1 (S.D.N.Y. Dec. 12, 2023) (recognizing that the Court may sanction defense counsel for “citing non-existent cases to the Court” pursuant to Fed. R. Civ. P. 11[b][2] & [c], 28 U.S.C. § 1927, and the inherent power of the Court).

In response, some courts have amended, or are considering amending, their local rules of practice. See, e.g., Notice of Proposed Amendment to 5th Cir. R. 32.3, U.S. Ct. of Appeals for the Fifth Cir. (“[C]ounsel and unrepresented filers must further certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human”); E.D. Tex. L.R. CV-11(g) (“Use of Technology by Pro Se Litigants. Litigants remain responsible for the accuracy and quality of legal documents produced with the assistance of technology (e.g., ChatGPT, Google Bard, Bing AI Chat, or generative artificial intelligence services). Litigants are cautioned that certain technologies may produce factually or legally inaccurate content. If a litigant chooses to employ technology, the litigant continues to be bound by the requirements of Fed. R. Civ. P. 11 and must review and verify any computer-generated content to ensure that it complies with all such standards.”). Some other courts have issued general orders. See, e.g., D. Hawaii Gen. Order 23-1; D. N.J. Order 3910; S.D. Oh. Order 4740; Oklahoma Bankr. Gen. Order 23-01; E.D. Pa. Order 5110; TX Bankr. Order 5714.

On January 30, 2024, the Second Circuit issued a decision finding that a local rule is not necessary to impose sanctions for such conduct because it is already covered by Fed. R. Civ. P. 11. See Park v. Kim, No. 22-2057, 2024 WL 332478, at *4 (2d Cir. Jan. 30, 2024) (“[A] [local] rule [specifically addressing the use of artificial intelligence tools before the court] is not necessary to inform a licensed attorney, who is a member of the bar of this Court, that she must ensure that her submissions to the Court are accurate. . . .”). Perhaps more importantly, the Second Circuit indicated that the proscriptions of Fed. R. Civ. P. 11 apply not only to legal research but to legal analysis. See Park, 2024 WL 332478, at *4 (“[A] brief relying on non-existent authority . . . presents a false statement of law to this Court . . . [that the attorney] made . . . the reasonable inquiry required by Rule 11 . . . into the validity of the arguments she presented.”) (emphasis added).

Stayed tuned for a FCBA-sponsored CLE on the ethics of using generative artificial intelligence to practice law – coming in June.


1 Rule 11 provides, in pertinent part, that, “[b]y presenting to the court a pleading, written motion, or other paper–whether by signing, filing, submitting, or later advocating it–an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law . . . [,] the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery . . . and . . . the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.” Fed. R. Civ. P. 11(b).