We’ve seen examples of fake case citations by lawyers, with ChatGPT the likely culprit. Now, a pro se plaintiff shows those aren’t just for lawyers.

In the case Morgan v. Community Against Violence, No. 23-cv-353-WPJ/JMR (D.N.M. Oct. 23, 2023), the plaintiff filed suit naming her former employer and four individuals who served as employees at the employer during her tenure with the organization as Defendants, alleging discrimination and violations of federal and state statutes, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990.

In this ruling, New Mexico Chief District Judge William P. Johnson was ruling on the defendants’ motion to dismiss on various counts. All the counts were dismissed – some with prejudice, some without prejudice – and the plaintiff was granted leave to file an amended complaint on the remaining counts.

What’s notable is section V of the ruling titled “Plaintiff’s Pro Se Status Does Not Give Her License to Abuse the Judicial Process”, where Judge Johnson issued a “Warning to Plaintiff moving forward”, where he says:

“As applied here, Plaintiff cited to several fake or nonexistent opinions…This appears to be only the second time a federal court has dealt with a pleading involving ‘non-existent judicial opinions with fake quotes and citations.’…Quite obviously, many harms flow from such deception—including wasting the opposing party’s time and money, the Court’s time and resources, and reputational harms to the legal system (to name a few)…The foregoing should provide Plaintiff with enough constructive and cautionary guidance to allow her to proceed pro se in this case. But, her pro se status will not be tolerated by the Court as an excuse for failing to adhere to this Court’s rules; nor will the Court look kindly upon any filings that unnecessarily and mischievously clutter the docket.”

In referring to “only the second time” for Federal courts, Judge Johnson was referring to (of course) the Avianca case, where the lawyer in that case admitted he used ChatGPT. We have seen at least a couple of cases where there were fake case citations by lawyers where probably the same thing happened. However, most attorneys know better (at least I hope they do), as they are taught that they have an ethical duty to provide competent representation under ABA Model Rule 1.1 (which includes a responsibility for technology competence in comment 8).

Of course, pro se parties aren’t taught anything about ethics. Most of them probably haven’t heard about the Avianca case or know that ChatGPT is prone to hallucinations. They don’t read case law. What this pro se plaintiff shows is not only can they cite fake cases as well, but it’s going to be difficult to stop them from doing so.

What this pro se plaintiff shows in this case is that the “wild west” has begun regarding pro se parties using ChatGPT and submitting filings with bogus case citations. And there’s not a “new sheriff in town”, at least not anytime soon.

Hat tip to Matt Linehan for the heads up on this case!

So, what do you think? Are you as concerned about pro se parties submitting filings with fake case citations as I am? Please share any comments you might have or if you’d like to know more about a particular topic.

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