ethics

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. 

The Power of Three: Civility, Professionalism, and Zealous Advocacy 

Three: A Magic Number

The number three seems to have extraordinary power, whether in art, where the “rule of thirds” creates visual harmony—the eye does love an odd number—or in structures, where triangles provide stability. The legal profession has its own “power of three” in the form of zealous advocacy, professionalism, and civility. Like the three poles supporting a tripod, each principle is essential in defining an attorney’s highest duty: to act in the client’s best interests while maintaining the profession’s integrity.

The first, the often-maligned concept of “zealous advocacy,” rests on the belief that truth is best revealed when two dedicated advocates argue opposing sides. This is distinct from European courts, particularly those following civil law traditions, where the court’s active role in fact-finding is prioritized over the adversarial contest between parties. 

However, advocacy is only valuable when it serves the truth, so zealous advocacy is limited to conduct that promotes fact-finding. To keep advocacy in line, the rules of professional conduct guide lawyers to behaviors that reveal rather than obscure the truth. In this way, they act as a check against a “win at all costs” mindset and reinforce that advocacy should not compromise integrity. Civility also plays a key role, acting as a brake on zealous advocacy that goes too far. These three concepts uphold a balanced approach to justice, keeping advocacy aligned with truth-seeking.

Zealous Advocacy: Not Dead Yet

Throughout much of the 20th century, the principle of zealous advocacy was a core part of professional standards for lawyers. This changed when the American Bar Association released its Model Rules of Professional Conduct in 1983. These Rules omitted direct references to zealous advocacy, reserving the use of the term “zeal” for the Preamble and comments to the Rules. Most state bars followed this lead in amending their own rules. 

In this limited form, the concept of “zealous advocacy” is refined to focus on client-centered and respectful advocacy. The commentary to Model Rule 1.3 clarifies that zeal should operate within ethical boundaries, reminding lawyers that diligent representation doesn’t require “offensive tactics” and encourages treating everyone involved in the legal process with “courtesy and respect.” These comments make it clear that zealous advocacy is about responsible and effective representation, not aggression for its own sake. 

Compare and Contrast: Civility and Professionalism

Although related, civility and professionalism are distinct, and each is necessary. Civility cannot be reduced to written rules because its concerns are situational and directly tied to specific interactions. It requires respect, patience, and restraint even under pressure, but the conduct these require may vary with the situation. Professionalism goes beyond individual interactions and encompasses a lawyer’s approach to practice, obligations to the justice system, and the ethical standards to be upheld in all aspects of their work. A lawyer can be civil in a particular case without demonstrating overall professionalism, and vice versa. Professionalism asks more of attorneys than civility alone: it includes a dedication to competence, integrity, and ethical decision-making that extends beyond individual interactions and reflects a lawyer’s commitment to the justice system.

Civility and Zealous Advocacy: Powerful Allies

Civility in the legal profession requires lawyers to show respect toward opposing counsel, opposing clients, and the court. The ABA’s rules and opinions clarify that an attorney’s responsibility to their client does not excuse incivility, but there is more to civility than good manners. Hostile, rude, and bullying behavior is just lousy advocacy and is often an effort to cover up a lack of preparation or competence. Judges and juries must be persuaded, and while people may fear a bully, they will never respect it. True advocacy is strengthened, not weakened, by civility. Civil discourse thus serves as a powerful ally to zealous advocacy, balancing aggression with respect.

Professionalism: The How-To 

Civility is an element of genuinely persuasive advocacy, but professionalism defines the boundaries of that advocacy, encapsulating an attorney’s duty to act in a way that reflects integrity, fairness, and commitment to justice. ABA Model Rule 3.4, for example, instructs lawyers to be fair to opposing parties, while Rule 4.4 calls for respect toward third parties. Professionalism provides a broader ethical context within which zealous advocacy must operate. Zealous advocacy may seem to focus only on the client’s interests; professionalism reminds attorneys that pursuing the client’s interest must take place in service to the interests of justice. Professionalism provides the guardrails that prevent zealous advocacy from turning into a free-for-all in which no holds are barred, and justice becomes irrelevant to promoting the client’s interest.

Balancing Civility, Professionalism, and Zealous Advocacy

The “power of three” reminds us that civility, professionalism, and zealous advocacy are not competing ideals but instead work together to define our duty to our clients, our duty to the justice system, and our duty to respect others, which is the mark of effective lawyering. Zealous advocacy without civility leads to unproductive conflict, while civility without zeal risks losing sight of the client’s interests. Professionalism embraces both, ensuring that civility and advocacy serve the client and the justice system. A balanced commitment to all three creates a steady, resilient structure that upholds a lawyer’s duty to serve their client’s best interests within the rule of law. 


 © 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.