No, I am not referring to the Britney Spears song. Instead, it’s fake case cites, a judge’s admonition, sanctions and impending discipline.
Today’s lesson comes from U.S. District Court Judge Kelly Rankin in the District of Wyoming after he discovered that plaintiffs’ counsel cited eight nonexistent cases in motions in limine. The case, Wadsworth v. Walmart Inc., et al, is a product liability action involving hoverboards. Summary judgment motions have been denied, and the case appears headed toward trial.
On Jan. 22, plaintiffs filed motions in limine citing nine cases. Likely due to the defense responses, Rankin learned that all but one of the cases appeared as if generated by artificial intelligence. Therefore, he, sua sponte, issued a show cause order directing three different plaintiff’s lawyers to show cause “why he or she should not be sanctioned.”
Rankin also instructed the lawyers to provide true and correct copies of the cases used in support of the motions in limine, required them to provide a thorough explanation of what happened, and asked them to explain why they should not be sanctioned under Rule 11 and the court’s inherent power. He mandated the responses be under oath.
All three lawyers responded, each taking responsibility for their part in the use of fake cases in the motions. Two lawyers – lead counsel and lead local counsel — admitted they did not read the motions before they were filed. Instead, each relied upon another lawyer on the team to prepare and file the motions.
In his response, lead counsel told the court about the remedial steps promptly taken after the show cause order issued. The steps taken included promptly withdrawing the motions in limine, being honest and forthcoming about the use of AI in the response to the show cause order, paying opposing counsels’ fees for defending the motions in limine, and implementing policies, safeguards, and training to prevent another occurrence in the future (and providing proof of such measures).
The court found all three lawyers violated Rule 11. The court stated it was easy to Shepardize cases. Rankin admonished the lead lawyers who did not review the motion before it was filed, suggesting they left themselves open to Rule 11. The court also concluded a lawyer who closely read the brief should have questioned its accuracy because it contained an obviously erroneous legal standard.
The lawyer primarily responsible for the motions was sanctioned hardest, a $3,000 fine and revocation of his pro hac vice status. The revocation of his pro hac status may be considered discipline that could follow him across many cases.
The lead lawyer and local counsel were each fined $1,000. Depending on local rules, the finding of a Rule 11 violation may also have to be disclosed in other cases.
The obvious violations here were the failure to check cites and relying too much on AI to prepare briefs. However, there are also other ethics issues. The primary ones relate to office policies and reviewing of the work by colleagues. Secondary issues relate to “taking responsibility.”
In Maryland, managerial responsibilities are primarily governed by Rule 19-305.1 and 19-305.3. Partners and managing attorneys should put policies and procedures in place so firms and offices comply with the Rules of Professional Conduct.
From Wadsworth, we know that every firm needs to have an AI policy. Other obvious areas include IOLTA, billing, calendaring.
Under Rules 5.1 and 5.3, when partners and managing attorneys put proper policies and procedures in place, they are generally not responsible for the misconduct of others in their office. Of course, there are exceptions. Some core exceptions are when a lawyer fails to take steps to avoid a rule violation he or she knows about before it occurs or failure to mitigate misconduct after learning about a rule violation.
I’m not suggesting that all lawyers need to spend the next several weeks going over all the policies in the office. I am, however, suggesting if you don’t have one on AI or you allow folks to sign your name to pleadings before you review them yourself, you might consider instituting some additional steps.
This article originally appeared in The Daily Record on March 5, 2025.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.