Legalethicstoday.com

What Happens When A Lawyer Makes A Mistake?

The Model Rules of Professional Conduct are clear about what must happen when a lawyer makes a “material mistake”, and the steps are grounded in the duty of competence, diligence, and communication owed to a current client.

The Ethical Framework

ABA Model Rule 1.1 requires legal knowledge and thoroughness. Rule 1.3 requires promptness, and Rule 1.4 mandates keeping clients informed about their matter and promptly responding to requests for information.

When a mistake has been made during a legal representation, these rules all come into play. If the error is “material,” it must be disclosed promptly. Hoping the client never finds out or quietly fixing it before disclosing is never a good idea as it can risk turning a simple lapse into a Rule 8.4(c) problem involving deceit or misrepresentation.

What Counts as a“Material Mistake”?

The ABA addressed this question in Formal Opinion 481, which describes a “material mistake” as (1) an error reasonably likely to harm or prejudice the client’s interests, or (2) that a reasonable client would want to know about to make informed decisions.

Examples include missing a filing deadline, failing to raise a claim, giving incorrect legal advice, or any oversight that limits the client’s legal position. Modern practice errors such as signing a filing with hallucinated cases, citations, or quotations probably fall into this “material” category. By contrast, small mistakes—an actual typo, a short delay, or a minor procedural misstep—may not be material enough to require disclosure if they can be quickly corrected.

Tell the Client

When a material mistake has been made, client disclosure should be prompt, factual, and transparent. Rule 1.4 Comment 7 makes it clear that withholding information from the client because it may cause you harm is forbidden. The client should be told what happened, what it means for their rights, what can be done to fix it, and what choices they have, including whether they should seek independent advice.

The duty to disclose exists only during the representation. Once the representation ends, there is no ongoing duty to contact former clients to confess past mistakes unless silence would perpetuate a fraud or violate another rule.

Fix the Mistake and Watch for Conflicts

Once the error has been disclosed, diligence requires quick action to repair the damage. That might mean filing a motion for relief, disclosing information to the court under the duty of candor (Rule 3.3), or negotiating with the opposing party to limit prejudice to the client’s case. Because lawyers are fiduciaries to their clients, work done to undo a mistake—whether material or not—is not billable.

Also be aware that if your personal interest in avoiding liability could limit the ability to give independent advice about the mistake, that conflict may require withdrawal under Rules 1.7(b) and 1.16(a)(1).

Lead with Ethics, not Fear

Every lawyer makes mistakes, so don’t practice afraid. Practice prepared. Know your duties, act quickly if you do make a mistake, and remember that owning a mistake the right way is one of the strongest demonstrations of professionalism.

© 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

No Shortcuts: Why Fundamentals Still Win in Law

My latest blog takes a hard look at recent cases where lawyers skipped the basics, and why “no shortcuts” isn’t just a football mantra — it’s a professional requirement.

By Jeanne M. Huey

The Basics Are the Story

I could have headlined this “Is This Still Happening?” But we’ve been asking that for over two years, and the answer is still “yes.” By “this,” I mean lawyers using AI for legal research — and not bothering to verify the results. And not at the margins — we’re talking about big international firms that have every research tool, policy, training program, and resource that money can buy.

Nobody expects us to be perfect all of the time. We’ve all fumbled — accidentally misquoted a case, misspelled a cite, or leaned on a holding that later got picked apart. Those are part of the game, and when they are caught and fixed, there is no penalty. But using AI-generated citations without checking them? That’s not a misstep — that’s running a hook and ladder on the very first play.

When Fundamentals Get Skipped

Last month, in Johnson v. Dunn, three Butler Snow LLP lawyers were sanctioned after one of them admitted to using unverified AI-generated citations in court filings. Until early 2024, this lawyer’s AI use had been purely personal —finding vacation spots, looking up fitness info, even researching colleges for his kids.

He told the Judge that he knew the firm’s AI policy but did not comply with it. How a tool he had only used casually for travel tips became a substitute for the firm’s paid legal research services — which cost thousands each month for a reason — is hard to understand. As a partner, he could have asked any paralegal, associate, or staff person to pull the cases and highlight the relevant passages for his review; reviewing them would have taken minutes. The only charitable explanation is that he thought AI was a legitimate legal research platform. If that’s true, this case shows that when it comes to the use of technology in the practice of law, even strong institutional safeguards mean little without constant education and personal accountability.

The Brief Bank

At the show-cause hearing in the case, another Butler Snow lawyer explained why he hadn’t checked the citations added by his colleague. His reasoning: Many of their cases involve the same law and precedent, so his team often pulls citations from older briefs and plugs them into briefs on the same topics. The suggestion was that this eliminated the need to rely on AI and was safer because they had used those cases before.

The Judge felt differently, writing that this practice was one of three factors that “deepened rather than allayed” her concerns.

The problem with this practice? Past use isn’t proof of present accuracy. Laws change. Precedent gets overturned—context matters.

This same concern applies to lawyers who borrow motions or briefs from other lawyers — or who post to a listserv asking for forms or legal advice from other lawyers that they plan to file as their own. Whether the information comes from your firm’s file cabinet, another lawyer’s Dropbox, or an AI chatbot, if you haven’t verified it for the case at hand, you’re taking a shortcut you can’t defend.

Cite & Highlight: A Run Up the Middle

Here’s an easy solution: require every case cited to be attached in an appendix with the relevant quote or holding highlighted. I call it “Cite & Highlight.” Courts could adopt it tomorrow. Firms could implement it today. The time it takes is nothing compared to the reputational cost of getting burned by a bad citation.

In Johnson v. Dunn, the partner who dropped AI-generated citations into a filing without review failed to make the reasonable inquiry Rule 11 requires. In Lacey v. State Farm (C.D. Cal. May 5, 2025), several large national firms made the same mistake by using AI — this time with 27 citations, nine wrong and at least two nonexistent. Whether the bad law comes from AI, an old brief, or a motion written by another lawyer, the problem is the same: If your name is going on it, you’re skipping the work. And in law, like football, there’s no substitute for work.

Flash and Fundamentals

Oregon football has a reputation for flash — the best uniforms, the newest tech, the gleaming facilities (thanks, Uncle Phil). But that’s not why they win.

Coach Lanning tells his players to do the work every single day and ask themselves: “How can I improve?” To own mistakes. To learn from people who do it better. To have the patience to get it right, because fast and wrong is still wrong. That lesson fits the courtroom as well as it does the gridiron.

The ethics rules don’t demand excellence — they set the baseline for lawyer ethics. But clients don’t hire us for the baseline. They pay us to prepare, check, and deliver our best. Yes it is hard, but if it was easy, anyone could do it. The practice of law requires intense work done meticulously every time.

Senior lawyers: model that standard. Young lawyers: don’t let pressure for speed push you into skipping steps. Stop feeding the myth that good work can be done in a flash. Shortcuts might buy you a little time today, but they undermine your work product, your discipline, and your success in the long run.

Law is not a job — it’s a profession. Every filing, every argument, every case reflects our expertise and pride in our work. Wins — in football or in law — are constructed day by day, decision by decision. And there are no shortcuts.

Go Ducks.

Lawyer Well-Being: What Are You Waiting For?

I typically write about legal ethics and professionalism. But I’ve also spent hundreds of hours studying wellness—earning certifications in yoga and professional coaching—and working to understand how lawyers, including myself, can navigate the intense pressure of this profession. Because how we care for ourselves shapes how we show up in our work, I am stepping outside of my usual role and sharing simple steps that anyone can use, anytime, to support their well-being. Welcome to my 1^st annual Wellness Blog.

Jeanne Huey, JD, 500-Hour Certified Yoga Instructor, Master Certified Professional Coach

Our well-being directly affects our ability to meet our professional obligations—starting with the most fundamental duties outlined in the ABA Model Rules of Professional Conduct. A lawyer experiencing burnout, chronic stress, or unaddressed mental-health challenges may struggle to provide competent representation under Rule 1.1, maintain appropriate communication with clients under Rule 1.4, or exercise independent judgment under Rule 2.1. Even duties of diligence (Rule 1.3) and scope of representation (Rule 1.2) can be compromised when we’re operating in a state of depletion. In other words, wellness has everything to do with ethics and professionalism.

Wellness Can’t Wait
As professionals, we spend our days inside systems we didn’t design. We respond to what’s pressing. We meet other people’s deadlines. In the process, we often neglect the quiet and frequently hidden urgency of our own well-being.

For lawyers, the cost of neglecting our wellness is clear: Burnout, anxiety, depression, and substance misuse are still on the rise. Law students face similar pressures, often with little or no support. While the ABA, state bars, and law schools have launched various wellness initiatives that are important and positive, the fact is that change in our profession tends to move slowly.

The good news is that we don’t have to wait. We can take charge of our well-being and do it now.

Consider this: No one teaches a tree to lean toward the light. It does so because growth depends on it. In the same way, tending to our well-being isn’t indulgence—it’s survival intelligence. It gives you an advantage. And, in the big picture, it’s the hallmark of professionalism in the legal profession.

Wellness Is Personal, But It Doesn’t Have to Be Solitary
Don’t wait for your firm, the bar, or the senior partner to set an example. Set your own example of wellness—and as you do, look out for others. Share the resources you find helpful, like I am doing with this blog. Normalize healthy boundaries. Ask how people are really doing. It may not be easy to do at first, but it is necessary if we are to look after each other as we should.

In a profession built on mentorship, taking care of yourself also sets a precedent for a sustainable practice—and shows others that balance is possible. It doesn’t take much to start:

• Trade one nonessential call for a silent walk.
• Turn a routine task into a mindfulness anchor: writing an email, preparing an outline, or greeting a colleague.
• Practice saying no without excuse.
• Stop apologizing for not meeting expectations that you set for yourself.

These aren’t empty gestures. They’re small decisions that move the needle in your favor—protecting your time, energy, and attention so that you are at your best when you need to be.

Learn to Reset
You don’t need more time, space, special equipment, or another box on your checklist to reset and clear your mind. Just a shift in focus for a few moments throughout the day is all that is required.

Moving and breathing, sometimes called “walking meditation”, is the most accessible form of this reset for busy professionals, especially during a demanding workday.
Don’t get hung up on the term “meditation”. This is simply taking time to focus on your breath, which helps shift the nervous system out of fight-or-flight. You can feel the difference after just a few minutes. The goal is to activate the parasympathetic system—your body’s natural reset mechanism.

There is nothing new or groundbreaking about this practice; the Center for Brain Health at UT Dallas recommends short “brain breaks” throughout the day to improve focus and decision-making. Getting started is simple:

• Put down your phone.
• Walk at a steady pace or stand or sit with your back turned to your workspace.
• Inhale for four steps/counts, exhale for 6.
• Focus on the sensation of your feet on the ground.
• When your mind drifts, return your focus to your breath or steps.

It takes just five minutes. No special gear. No perfect conditions. No voice in your ear giving instructions. Just a hallway, stairwell, sidewalk, or quiet corner is enough.
When you are done, return to your task with a clearer mind. Repeated over time, this practice will become a natural—and essential—part of how you work.

Tending to Yourself Is Wise, Not Selfish
Our profession demands much from our intellect, our judgment, our energy, and our presence. To uphold our duties to clients, the courts, and the public, we must bring focus, steadiness, and competency to our work.

Taking a few minutes for ourselves isn’t a diversion from our duties—it’s what makes it possible to fulfill them.

If you or a lawyer you know needs help or just someone to talk to, help is available from your state bar Lawyer Assistance Program (LAP). Click here for a list of the contact information for each state’s LAP.

All but the authors paragraph in italics at the top is © 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The Stakes Just Got Higher: Texas Legislature Cracks Down on Barratry

On June 22, 2025, a new law took effect in Texas: Beginning with cases filed on or after September 1, 2025, the civil penalty for barratry in Texas is $50,000 per violation, up from $10,000 per violation. That penalty is in addition to actual damages, forfeited fees, and attorneys’ fees.

If someone is handing out your name to potential clients—and you don’t know precisely what they’re saying to get that person to call you or, worse, to connect you in real time—you should find out. It doesn’t matter whether you made the contact. And it doesn’t matter whether there were two or three people between the caller and you. If someone is soliciting clients on your behalf, you’re in the chain and at risk of violating barratry laws in Texas.

From accident to ambush: A firsthand account

Last month, my car was hit. Eight days later, bright and early in the morning, the texts started coming:

“Jeanne, new updates on the Plano [number] police report have posted today at 7:19 a.m. Changes were made to the accident report involving [your car make and model]… Call us… for a FREE report…

Then came the phone calls—from people “collision experts” who wanted to ensure I received all I was “entitled to” and offered “free help.”

They told me they could help make sure the insurance company didn’t lowball me. They offered medical treatment “at no cost,” under a Letter of Protection (LOP). I was told I wouldn’t have to do anything—they would “take care of it,” and my name wouldn’t even be on the bills.

I knew these were lies.

Then came the Big Question: Had I already hired a lawyer? If not, they could connect me to someone. But first, I had to confirm three things on a recorded line:

I didn’t already have a lawyer
Someone in the car had been injured (even a bruise!)
I was the one requesting to speak to a law firm—i.e. the lawyer they were connecting me to had not contacted me

This script was designed to check boxes—to try to create a record that made it appear I had initiated the contact. But I hadn’t. At this point, the original caller dropped off the line, and when I told the next person I was a lawyer, they hung up the phone.

These interactions weren’t marketing strategies—they’re violations of law and the Texas Disciplinary Rules. Specifically, Texas Penal Code §38.12, Section 82.0651 of the Texas Government Code, and Texas Disciplinary Rules of Professional Conduct Rule 7.03 and 8.04(a)(3) to name just a few.

Lawyers: Please ask questions

If you have even a hint of concern that someone sending you clients might be crossing the line into barratry, be proactive.

Ask hard questions. Know precisely how your cases are coming in and where they are originating from.

Put it in writing. Your contracts with marketing services or anyone sending you “leads” should include Texas ethics compliance and audit rights.
Watch your intake. When a client says they were “referred” or “given your name,” find out immediately by whom, how, and when.
Train your Staff and put written policies in place. Make sure anyone taking calls for you knows what to look for and what to do if they suspect a client has been sent as a result of barratry.

Don’t count on plausible deniability—count on compliance

Just because a third party or “nonprofit” is involved on the front end does not mean you will not be accused of barratry. The fact that the client does not end up hiring you won’t protect you from a barratry claim. And putting two or three people between you and the initial call only creates more potential witnesses.

Barratry thrives in the grey area between marketing and solicitation. But that grey area is shrinking fast, and for Texas lawyers, the only thing more expensive than asking the right questions is failing to ask them at all.

For more information on barratry, please visit my firm’s website at https://hunthuey.com/ or contact me directly.

Note: This blog does not address the narrow exception that applies to lawyers contacting potential clients in criminal cases, which is governed by a different set of rules.

Oops, I Did It Again: Lawyers Rely on AI at Your Peril

Lawyers continue to be misled by AI-generated case law that appears genuine but isn’t. This post is about a personal experience and why lawyers can’t afford to stop thinking.

I Gave GAI Clear Instructions: It Still Lied

A few weeks ago, for fun, I asked the GAI program I use to look on the internet and see if there was a quote on a specified topic from a “Founding Father”. Within seconds, it provided me with an on-point quote, which was attributed to John Adams, accompanied by a hyperlinked citation. It was the best party trick ever–until it wasn’t. Because the quote didn’t exist. Anywhere. When I called it out, GAI replied: “It sounds like something John Adams would say.”

Yesterday, I tested it again.

I asked for it to find the rule for a certain proposition. A rule of civil procedure that I knew existed. It told me the rule didn’t exist. I wanted to see if it would correct itself, so asked it to back that up with a case and a link to the statute. It did—with confidence. It even provided a quote from the case that it said supported the position it had taken. Except it was still wrong–the rule did exist and it had simply made up the quote.

When I pointed out the error and asked how this had happened, GAI explained:

“I incorrectly generalized and answered based on a commonly followed general rule.”

Mind you, I had given it specific, detailed instructions and prompts—things I had learned from CLE courses and articles about how to use AI and get accurate outputs. These included telling it not to make anything up, to double-check sources, and to provide links to public, official sources for every “fact” it retrieved from the internet.

What I got was a lie, wrapped in a polished, confident tone, dressed up like a real legal citation—because GAI is built to give me what I want and to sound persuasive and helpful, even when it’s dead wrong.

Lawyers’ Misuse of AI Continues to Make Headlines

Different courts, different lawyers, but the failure is identical: If you don’t read the case, the court will—and then you’ll make the news. Here is a partial list of headlines just from the past few weeks–hyperlinked to their source:

May 14, 2025 AI Hallucinations Strike Again: Two More Cases Where Lawyers Face Judicial Wrath for Fake Citations

May 21, 2025, Judge Considers Sanctions Against Attorneys in Prison Case for Using AI in Court Filings

May 29, 2025, Lawyer Sanctioned $6,000 for AI-Generated Fake Legal Citations.

May 30, 2025, Southern District of Florida Sanctions Lawyers for Submission of AI Hallucinated Caselaw

May 31, 2025, US Lawyer Sanctioned After Being Caught Using ChatGPT for Court Brief

This Should Not be News to Most of Us

The problem of overworked lawyers attempting to take shortcuts is not new. Only the method has changed. For decades, lawyers have been getting sanctioned or called out by opposing counsel for:

Using the headnote from a paid online legal research tool as a “quote” without reading the opinion to confirm it.
Copying a pleading from a prior case and filing it without checking if the law still applies.
Lifting a motion from a CLE binder, online research tool, or lawyer listserv conversation and passing it off as their own.
Using the analysis from someone else’s case within the firm, without knowing or understanding the facts, court, or procedural history of that case.

Every one of these examples has the same flaw: the lawyer wanted a way to circumvent doing the work we get paid to do i.e. think.

The Real Problem Isn’t AI

AI isn’t the problem. It’s just the newest version of a long-standing temptation: to find a shortcut. Something to save time, make us look smart, or help us meet a deadline when the work hasn’t been done.

If you’re feeling pressure to use AI—or to do things faster, cheaper, or “more efficiently” than ever before—hear this:

You get paid to think, and no technology can replace your judgment or experience.

Your speed or formatting skills don’t determine your value. You are trained to analyze, reason, and argue. Your value lies in how you perceive what matters, identify what’s missing, and determine what it will take to achieve your client’s goals. You can’t delegate that to a machine just like you can’t outsource that to someone else’s pleading or form.

And don’t let fear push you to use a tool you don’t understand. Stop. Breathe. Learn what it can do. Learn what it can’t. Use it wisely—don’t rely on it to think for you, and don’t believe it when it assures you that it has.

For Judges and Supervisors: A Fix Worth Considering

To stop this problem from recurring, consider this simple fix:

Require every pleading filed with the court that contains a reference, cite, or quotation to any authority to be internally hyperlinked to an attached appendix that includes a copy of the source with the relevant rule, holding, or quote highlighted for the court’s convenience.

This should become standard, just like a certificate of service. Lawyers should also apply this requirement to the work of those they supervise. And no, the clients should not pay for this “extra” work; it overhead–the price of doing business in the era of AI.

The Technology Changed, the Job Didn’t

This isn’t about shaming lawyers. It’s about reminding us who we are.

We are not prompt engineers or data processors. We are professionals who took an oath and have duties to our clients, the courts, and the public.

So please, don’t be a headline.

Read the case. Check the quotes. Confirm the law is still good. And don’t rely on any tool that doesn’t distinguish between the truth and a lie.

ABA Ethics Opinion 516 and Permissive Withdrawal

Jeanne M. Huey

On April 2, 2025, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 516, offering interpretive guidance on a frequently misunderstood part of the ABA’s Model Rules of Professional Conduct—the standard for permissive withdrawal under Rule 1.16(b)(1). Part (b)(1) of Rule 1.16 permits a lawyer to withdraw from representation in an active matter without client consent if it can be done without “material adverse effect on the interests of the client.”

Withdrawal nearly always causes some disruption to the client, and while Opinion 516 recognizes this, it focuses on determining when that disruption crosses the line into an ethics rule violation. In other words, when does withdrawal cause “material adverse effect” on the client’s matter? The opinion seeks to answer that question by clarifying what should be considered “material” in this context.

As part of the answer to that question, and for the first time, the ABA formally states in the opinion that under Rule 1.16(b)(1), a lawyer’s reason or motivation for withdrawal is irrelevant. Instead, the focus is solely on the materiality of the adverse effect on the client’s legal interest and whether the withdrawal will cause the client significant harm.

The opinion fills a long-standing gap in ABA guidance by confirming that a lawyer may ethically withdraw for strategic or business reasons, such as making room for a new client, as long as the existing client is not materially harmed. This interpretation sets (b)(1) apart from the other six reasons for permissive withdrawal under Rule 1.16(b), each of which considers the lawyer’s justification and reasons for withdrawal.

ABA Model Rule 1.7 (concurrent client conflicts) and ABA Model Rule 1.9 (duties to former client) are also relevant to this analysis through the application of judicial doctrines and may come into play depending on the lawyer’s next engagement.

Judges: The Last Word

The opinion acknowledges that while Rule 1.16(b)(1) provides an ethical pathway for withdrawal, when a matter is in litigation, courts retain wide discretion to disqualify lawyers for conflicts of interest on fairness or policy grounds, even when there is no ethics rule violation. In other words, lawyers who ethically withdraw under Rule 1.16(b)(1) to represent a new or different client can still find themselves disqualified from that representation under the rules regarding conflicts of interest.

Two judicial doctrines briefly discussed in the opinion and dissent are relevant here. The first is the “hot potato” doctrine, a court-made rule prohibiting lawyers from dropping one client to represent another in a matter where the two clients’ interests conflict. The opinion distances itself from the hot potato doctrine, noting that it is not part of the Model Rules and arises from judicial interpretations of loyalty, not the ethics rules. Still, lawyers should be aware that courts may invoke this doctrine even when a withdrawal is ethically permissible under Rule 1.16(b)(1). In short, the hot potato doctrine is not about whether a lawyer may withdraw under the ethics rules but whether a court will recognize that withdrawal when analyzing conflicts or disqualifying counsel.

As the dissent notes, the opinion largely avoids discussing an important carve-out from the hot potato doctrine: the “thrust-upon” exception. This exception applies when a conflict arises through no fault of the lawyer, such as when two clients merge or a new party is added to a matter. In those cases, courts have allowed lawyers to drop one client, often the one with the weaker or less central relationship, without being penalized under hot potato principles. While the ABA correctly distinguishes its ethics opinion from court-made disqualification rules, the dissent notes that the lack of treatment of this well-known exception is a missed opportunity to give lawyers relevant guidance.

While the dissent, written by two committee members, does not directly undermine the opinion’s main conclusions, it does point out these and other areas in which the opinion’s scope is somewhat limited and is worth reading.

Finally, every litigator seeking permissive withdrawal from an active matter in court must not lose sight of the most basic requirement of any such withdrawal—something that the opinion only mentions in a footnote. Under Model Rule 1.16(c), “[a] lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”

When a lawyer seeks to withdraw from representing a client in a court case, the judge will always have the last word, regardless of what the ethics rules or opinions say.

Conclusion

Formal Opinion 516 confirms that withdrawal is ethically permissible under Rule 1.16(b)(1) if the client will not suffer material harm, regardless of the lawyer’s motivation. That includes withdrawing to avoid a conflict or to take on a new client since the lawyer’s reason for the withdrawal is not part of the “material harm” analysis.

However, when reading the opinion and dissent together, the message for lawyers is clear: If you want to withdraw from an active representation, you must comply with Rule 1.16(b)(1) but should always consider how courts and the client will view your decision and plan accordingly. Client communication, proper documentation, transition planning, and attention to conflict analysis remain critical even if the withdrawal is allowed under the ethics rules.

Lawyers should read the full text of Formal Opinion 516 and, because ethics opinions and rules differ across jurisdictions, should know and follow the relevant ethics rules, opinions, and case law in the jurisdictions where they practice.

The Larger Cost of Reckless GAI Use in Litigation

Jeanne M Huey

March 3, 2025

Courts, opposing parties, and clients all suffer when lawyers fail to properly vet work generated by artificial intelligence (“AI”), leading to wasted judicial resources, procedural delays, and broken client and public trust.

Gauthier: GAI Hallucinations in Court Filings

A recent case serves as a stark reminder that competence and diligence in using generative AI (“GAI”) tools is not optional but is an ethical imperative.

In Gauthier v. Goodyear Tire & Rubber Co., a lawyer was sanctioned for submitting unverified GAI-generated content in a response to a motion for summary judgment. No. 1:23-CV-281 (E.D. Tex. Nov. 25, 2024). This included two citations to entirely fabricated cases and nonexistent quotations from seven actual cases—that is, “hallucinations.”

In sanctioning the lawyer, the court determined that the lawyer submitted a false statement of law to the court and failed to rectify the mistake after opposing counsel pointed it out in their reply. Instead, the lawyer did not address the error until the court issued a show-cause order. The court also remarked that “it is unclear what legal research, if any,” the lawyer conducted before filing the response. Id. at *5.

The lawyer was ordered to pay $2,000 into the court registry, to take one hour of CLE on the topic of GAI in the legal field, and to provide his client with a copy of the sanctions order. The sanctions imposed were relatively mild considering the potential harm to the client, the opposing party, and the integrity of the court system.

Wasted Resources and Judicial Frustration

GAI-generated errors like those in Gauthier force courts to spend time unraveling the problem rather than addressing the substantive legal issues. That’s why courts increasingly impose strict requirements in their local rules regarding GAI use.

In addition to finding that the lawyer violated Federal Rule of Civil Procedure 11, the Gauthier court found violations of its local rules requiring lawyers to exercise candor and diligence and mandating that lawyers review and verify any computer-generated content before submitting it.

Moreover, the court likely could have found a violation of ABA Model Rule 3.3 pertaining to candor to the tribunal, and ABA Model Rule 8.4(c) and (d) for engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation” and that is “prejudicial to the administration of justice.” The lawyer also could have been referred to the local disciplinary authority by the court, opposing counsel, opposing party, or client.

Rule 11 already provides a framework for addressing these concerns, but if lawyers continue to disregard it, courts may impose stricter measures. Lead counsel might be required to certify or swear to the accuracy of every filing—something their signature should already indicate. Courts could mandate CLE credits on AI use as a condition for good standing or pro hac vice admission. Additional burdens may include requiring attorneys to keep records of all GAI-generated prompts used in preparing the filing or to attach every cited case as an appendix with key holdings and quotations highlighted. Courts might also implement prefiling review requirements, mandating independent verification of AI-generated content before docketing.

Unnecessary Burdens and Expenses for Opposing Parties

In Gauthier, the opposing counsel said that they had spent significant time and resources—over $7,500 in fees—determining that the citations and quotes in the response were fictitious and bringing the issue to the court’s attention. However, lawyers who use GAI irresponsibly do not simply create wasted work for their adversaries. An offending lawyer almost certainly violates their ethical obligations under ABA Model Rule 3.1, which prohibits lawyers from bringing or defending claims that lack a legal or factual basis, ABA Model Rule 3.2, which requires lawyers to make reasonable efforts to expedite litigation, and ABA Model Rule 3.4, which mandates fairness to opposing parties by prohibiting conduct that delays or burdens litigation without substantial justification.

Although courts may not always directly compensate opposing counsel for fees incurred by the other side’s careless use of GAI—the Gauthier court did not—judges are not blind to the larger impact of such conduct. If GAI-related errors continue to occur, lawyers can expect (and should ask) courts to shift the burden of these costs onto the offending lawyers through harsher sanctions and fee-shifting orders.

Sanctions and Eroded Client Trust

The most direct impact of GAI incompetence is on the lawyer-client relationship. In Gauthier, the court ordered that the sanctions order be provided to the lawyer’s client so that the client would know that his lawyer had been sanctioned for submitting false information to the court.

Beyond the immediate embarrassment and potential financial consequences to the lawyer, basic competence is at play. ABA Model Rule 1.1 Comment 8 requires lawyers to maintain competence in the technology that they are using in their practice, including understanding the technology’s benefits and risks. A lawyer who does not understand how GAI functions or fails to verify GAI-generated work has not met this duty of competence. While clients expect lawyers to be efficient and cost-effective and may think that using GAI will help reduce legal fees, they do not pay lawyers to take risks with their case outcomes; they certainly don’t pay for them to misrepresent the law and be embarrassed in front of a judge. A single GAI-related error could permanently undermine clients’ faith in their attorney and end the representation.

The Public’s Perception: Lawyers Need to Control the Narrative

Currently, the public is receiving two conflicting messages about GAI:

• “GAI will replace lawyers.”

• “Lawyers are getting sanctioned because they do not know how to use GAI.”

Neither narrative is good for the profession. Clients will resist paying for legal expertise if GAI is considered an inevitable replacement. Public confidence in the legal system will erode if lawyers can’t be trusted to understand and use GAI correctly.

The only way to control this perception is through responsible behavior, professionalism, and a commitment to meeting and exceeding our ethical duties under the rules when we use GIA and related technology. It will also be necessary to effectively communicate with clients about GAI and how it might be used within the firm, such as in billing software, or in their case, which may require their informed consent.

Ethics opinions and court rules concerning GAI differ across jurisdictions, and the applicable standards of care are evolving rapidly. Staying current and ethically integrating GAI tools into our law practices will take time and attention. Those who fail to do so risk not just sanctions but harm to both their professional reputation and the credibility of the legal system: lawyers who understand the risks and benefits of GAI and implement its use responsibly will not only protect their practice but also strengthen public trust in the profession and help shape its future.

© 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Four Strategies for Young Lawyers to Combat Bullying

Jeanne M. Huey
January 29, 2024

Many young lawyers encounter bullying from opposing counsel, senior colleagues, or even the court. Bullying can take various forms, including condescension; public humiliation; verbal attacks; or, in litigation, a refusal to cooperate to reach even the most basic agreements between counsel. While being a litigator demands resilience, tolerating such behavior is neither necessary nor productive.

Master Emotional Detachment and Communication
Bullying thrives on eliciting emotional responses. Young lawyers should master emotional detachment when confronted with aggressive or condescending behavior. This does not mean suppressing emotions indefinitely but rather choosing not to let the bully control the atmosphere at that moment. Staying calm, composed, and focused on the substantive issues of the case demonstrates professionalism and denies the bully the satisfaction of a reaction.
When inappropriate behavior cannot go unaddressed, be direct but professional. For example, if opposing counsel makes a derogatory remark, a response like “I’d appreciate it if we kept the discussion focused on the legal issues” sets boundaries without escalating conflict or personalizing the inappropriate conduct. You may need to do this more than once, and if it doesn’t work, you should not be afraid to say something like “I don’t think we’re getting anywhere today”—and end the conversation either by leaving or hanging up.

Develop Strong Legal Skills
Redirecting the conversation to substantive issues demonstrates your focus, command of the matter, and competence—all of which act as effective shields against bullying. Thorough preparation can prevent bullies from exploiting perceived weaknesses. When a bully’s criticisms are unfounded, your confidence in your work will also help you remain calm and not feel the need to interrupt or respond in kind.

Be meticulous in your research, writing, and courtroom preparation to build a reputation for excellence that commands respect. As you work to make your reputation at the courthouse, the judges who know you as a competent and confident professional will not be swayed by the opposing counsel who tries to interrupt or bully you. Over time, your reputation for competence and professionalism will precede you, and others will be less likely to engage in unprofessional behavior when they face you in a case.

Leverage Procedural Rules Strategically
Judges are generally intolerant of conduct that repeatedly disrupts the administration of justice, and procedural remedies can be powerful equalizers in the face of unprofessional conduct by opposing counsel. Understanding these rules and using them judiciously demonstrates your command of the law and reinforces your professional credibility. Federal, state, local, and even court rules, scheduling orders, or agreements between counsel may provide procedures to hold a bully accountable for unprofessional behavior.

Federal Rule of Civil Procedure 37 addresses failures to disclose or cooperate in discovery and can result in sanctions against the offender. Federal Rule of Civil Procedure 11 provides for sanctions against an attorney or party who signs a pleading that is not well-grounded in fact or warranted by existing law or that is filed for an improper purpose, such as to harass, delay, or cause needless litigation costs. Any attorney or individual permitted to practice in federal or territorial courts who “multiplies the proceedings in any case unreasonably and vexatiously” may also be held personally responsible under 28 U.S.C.A. § 1927 for covering the additional costs, expenses, and attorney fees caused by such actions. And do not forget the court’s inherent authority to sanction attorneys and parties for misconduct that abuses the judicial process.

Judicial intervention is never your first resort, and you should not request sanctions until the bully has proven to the court—usually by engaging in repeated bad conduct—that the sanctions are necessary and just. Judges recognize that unnecessary requests for judicial intervention are themselves a form of bullying, and you never want to be seen as a bully.

Seek Mentorship and Prioritize Self-Care
The emotional toll of bullying can be significant; when faced with bullying directed at you, it is crucial to take steps to preserve your resilience and happiness. Cultivating relationships with mentors and peers can provide guidance and a buffer against professional challenges, including bullying. Trusted mentors can offer advice, share strategies for handling difficult situations, and sometimes intervene on your behalf. Networking with peers through bar associations, young lawyer groups, or specialized practice organizations creates a support system where experiences and insights are shared. You can seek support and help others who may need it through these connections and networks.

Conclusion
These are just a few suggestions for dealing with bullies in the legal profession. While standing up to bullying can be daunting, recognizing and addressing bullying professionally can protect your reputation and mental health while contributing to a more respectful legal community for everyone.

Key Areas to Update in Your Fee Agreement

Jeanne M Huey

The way we practice law constantly changes, and our fee agreements must keep up. A well-crafted fee agreement does more than outline how and when you get paid—it helps avoid disputes by setting clear expectations and aligning your practice with ethical obligations. Your internal policies and procedures must then align with what you outline in the fee agreement, and everyone in the firm should follow them to the letter. To start the year strong, consider reviewing and revising the key aspects of your current fee agreements (and updating any corresponding internal policies) to create consistency, avoid misunderstandings, and protect your practice.

Define the Scope of Work

Every case and client is unique, and your fee agreement should reflect that, particularly when defining the scope of work and providing disclaimers for excluded services. ABA Model Rule 1.2 allows lawyers to limit the scope of their work if the client understands and consents to the limits. Start by talking to the client about what they expect and what you can and cannot do for them. Then, ensure that your fee agreement clearly and precisely defines the scope to which you and the client have agreed.

In most litigation matters, there are tangential issues—often, they are tasks like tax advice, financial planning, or title searches—that you will not be handling for the client. If your job does not include these matters, say so in the fee agreement. Explicit disclaimers prevent scope creep and protect your practice by making it clear, in writing, what you are and are not doing for the client. Disclaimers also help protect you from liability in areas outside your expertise and avoid the risk that the client will “assume” that you are doing something for them that you are not and for which they need to hire another qualified professional.

Because circumstances change during litigation, your fee agreement should explain the need for a new, additional agreement to make revisions to the original fee agreement—including any increase in the scope of work. Resist the temptation to launch into a new project or expand your scope of work before you and the client agree on all aspects and document the change in a signed writing.

Address Client Communication

Regular, documented communication reduces the likelihood of disputes and is one of the best and easiest ways to satisfy clients. ABA Model Rule 1.4 requires that clients be informed about the progress of their matter, and the nature and timing of those communications should be an explicit part of your fee agreement. Customize the communication section of your fee agreement to fit your operations and let the client know whom to email, call, or text when they have questions or want to set up a meeting.

Some practice areas depend on paralegals for most client communications. If that’s the case for your practice, ensure that your clients know this by including it in your fee agreement. Additionally, if you (or your clients) prefer to communicate primarily via text message, ensure that your fee agreement reflects this method of communication. Clearly outlining how clients can contact you or your team for questions or updates provides clarity, fosters trust, and gives clients peace of mind.

Describe How Fee Disputes Will Be Handled

Your fee agreement should address how billing disputes will be resolved. Include a dispute resolution provision for fees, whether arbitration, mediation, or direct negotiation. Check the current law in your jurisdiction to ensure that your dispute resolution provision will hold up in court.

Your fee agreement should include a process for handling disputed fees that is consistent with the ethics rules. ABA Model Rule 1.15(e) requires disputed funds in the lawyer’s hands to remain in a trust account—such as an IOLTA—until the dispute is resolved. Be transparent about this requirement so that clients know what to expect if a billing issue arises or a third party with a recognized claim materializes with regard to the money held in trust. Emphasize that undisputed funds will be promptly distributed.

Explain Your Use of AI Tools

We have a duty to utilize new technology in our practice, and our clients expect us to do so. Under ABA Model Rule 1.1, comment 8, that duty includes knowing how technology works as part of our required competence.

To keep clients informed about new technologies in your practice, update your fee agreement to specify when and how artificial intelligence (“AI”) will be used in their case. Fulfill your duty of competence by taking the time to understand how your AI tools handle client data, and ensure that they meet the highest security standards.

Some uses of AI in legal practice pose risks, so addressing these concerns in your fee agreement is essential. To do this effectively, you must understand not just how the ethics rules apply to AI use (ABA Formal Opinion 512 should be a mandatory read for all lawyers on this topic) but also the ins and outs of any court or local rules regarding AI use and its disclosure that may apply to a client’s case, how AI works in different contexts, and the specific capabilities of the tools that you use. Train your staff to comply with all of the ethics rules regarding AI, and write down your firm’s policies on such use.

Two key aspects of AI use involve the duty of confidentiality under ABA Model Rule 1.6. First, under Formal Opinion 512, lawyers must obtain a client’s informed consent before entering any “information relating to the representation” into self-learning AI platforms (such as ChatGPT or similar tools). Address this in your fee agreement by disclosing that client information will not be input into any such tool without the client’s written “informed consent.”

Second, any AI tools that your office uses within closed, secure systems—such as legal billing software, timekeeping tools, and document management platforms—should be disclosed to the client. These systems are designed to protect confidential information and ensure that data for each client and matter remains separate and secure. Let the client know that you are using them and that your protocols regarding AI meet all of the required security procedures and mandates.

Align Your Practice with Your Promises

Your fee agreement is a commitment—not just about how and when your client will pay but also about your services for the client. As you expect your client to pay as promised, everyone at the firm must follow your policies and procedures and conduct business as pledged in the fee agreement. By following through on the commitments in your fee agreement, you create transparency, build trust, and establish a strong foundation for a successful and lasting working relationship with your clients

Generative AI for Lawyers Part 3: Ethical Use of Hypotheticals with GAI

By Jeanne M. Huey

In the previous entry in this series, we discussed ABA Formal Opinion 512’s admonition against inputting any information relating to a client’s representation (confidential information under ABA Model Rule 1.6) into self-learning generative artificial intelligence (GAI) software without first obtaining the client’s “informed consent”.

Consider, however, that there are a variety of ways to use self-learning GAI without either disclosing any client confidential information or obtaining the client’s “informed consent.” These methods allow you to reap the benefits of self-learning GAI for your clients while maintaining your ethical obligations under the relevant rules and opinions.

Ethical Use of Hypotheticals in Case Discussions

ABA Model Rule 1.6 Comment 4 advises that using a hypothetical to “discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.” In any public-facing discussion, these prohibitions are particularly relevant, because audience members can easily connect the dots from contextual information in hypotheticals to learn who the client is or simply look up the speaker’s cases online to get the same information. This makes it nearly impossible to say that there is “no reasonable likelihood” that client confidential information will be disclosed when lawyers use hypotheticals based on their clients and cases in situations where the lawyer’s identity is known.

ABA Formal Opinion 480 (public comments by lawyers such as blog posts and social media) and ABA Formal Opinion 511R (lawyers discussing cases on lawyer forums such as LISTSERV) take this principle further. Both opinions warn against the use of hypotheticals in any public context without the client’s informed consent when there’s a possibility that third parties could deduce the identity or specific details of a client’s situation.

The combined guidance from these ethics opinions and related rules establish a high bar for confidentiality in public legal commentary and make it clear that clever wordsmithing and linguistic acrobatics alone (i.e., using hypotheticals) will not insulate lawyers from the risk of liability for a breach of the rules regarding confidentiality in these kinds of settings.

Advanced Strategies for Securely Using Hypotheticals with GAI

While any use of a hypothetical to discuss a client or case requires vigilance regarding client confidentiality, GAI may offer a more protective environment for the use of a well-written hypothetical.

In contrast to using hypotheticals in public discussions or commentary, using a hypothetical in a GAI prompt significantly reduces the likelihood of associating a scenario with a specific client due to GAI’s inherent anonymity; there is no identifiable author or audience involved. This allows attorneys to use hypotheticals to effectively analyze complex legal issues while safeguarding client confidentiality and to do so without seeking informed consent from the client. This distinction aligns with ABA guidelines on confidentiality, which emphasize that the risk of disclosure varies depending on the audience and platform used.

Consider the following approaches:

1. Abstract the Core Legal Issue

When crafting hypotheticals, distill the client’s situation to its fundamental legal principles, omitting any specifics that could reveal their identity—such as names, dates, financial figures, or unique circumstances. Focus on the legal doctrines or statutory interpretations at play rather than granular details.

Example:

Instead of asking about a “global pharmaceutical company facing allegations of off-label marketing in violation of FDA regulations,” reframe the inquiry to address “a corporation navigating regulatory compliance challenges in the context of strict federal oversight.” This allows you to explore the complexities of regulatory compliance without disclosing identifiable information.

2. Emphasize Legal Theories and Precedents

Center your inquiries on broader legal theories, jurisprudence, or procedural rules. You can gain insights without tying the discussion to specific client facts by focusing on legal frameworks and landmark cases.

Example:

Rather than delving into the specifics of a complex international arbitration your client is involved in, you might ask, “How have recent court decisions impacted the enforcement of arbitral awards under the New York Convention?” This approach examines critical legal interpretations without disclosing client involvement.

3. Frame Questions Around Legal Processes and Strategies

Pose questions that concentrate on legal processes, litigation strategies, or best practices rather than specific factual scenarios. This enables you to gather strategic insights while maintaining confidentiality.

Example:

If advising a client on mitigating risks in cross-border mergers, you could ask, “What are effective due diligence strategies for uncovering potential liabilities in international M&A transactions?” This allows exploration of procedural tactics without referencing the client’s situation.

4. Use Analogous Legal Contexts

Construct hypotheticals using different contexts or industries that parallel your client’s issues. By transferring the legal problem to a comparable but distinct setting, you can examine relevant principles while further obscuring client details.

Example:

If your client is an energy company facing environmental litigation over alleged contamination, you might frame the hypothetical around a manufacturing company dealing with toxic-tort claims. The legal principles regarding environmental liability and defense strategies remain pertinent, but the context shift protects client confidentiality.

By employing these techniques, you can effectively leverage GAI tools to explore complex legal issues while rigorously safeguarding client confidentiality.