We continue to see filings with bogus info from generative AI. Now, the 5th Circuit is considering a certification rule for generative AI.

As reported by Bob Ambrogi in his excellent LawSites blog (In First for A U.S. Appeals Court, 5th U.S. Circuit Court Considers Rule Requiring Lawyers to Certify they Did Not Rely on AI to Create Filings, available here), the 5th Circuit is considering adoption of a rule change that would require lawyers and unrepresented litigants to provide a certification regarding their use of artificial intelligence in preparing court filings.

Lawyers and other filers would be required to certify either that they had not used AI in drafting the document or that, if they did, “a human” had reviewed the document for accuracy.

While at least 14 federal trial courts have adopted AI-related rules of some sort (including this one), this appears to be the first instance of such a rule being considered by a federal appeals court.

Many courts were spurred to consider such rules in the wake of Mata v. Avianca, where two lawyers were sanctioned for filing a brief laden with bogus cases hallucinated by ChatGPT.

The court recently published the proposed change and is seeking written comments from the public through Jan. 4, 2024.

Specifically, the proposed would amend the circuit’s Rule 32.3 — which already requires attorneys to sign a certificate of compliance with the court’s filing guidelines as to typeface, page limits, etc. — to add:

“Additionally, counsel 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.”

A material misrepresentation regarding the use of AI could lead to rejection of the document and sanctions imposed on the person who filed the document.

The proposal would also review the court’s Form 6, which is its certificate of compliance, to add a section with checkmarks for the pertinent AI certifications.

The full text of the rule change and new form, and instructions on filing comments, can be found here.

Given that we’re continuing to see filings with bogus cases (recent examples here and here), it’s not surprising that courts are considering rules changes – even though FRCP Rule 11 should be enough to hold them accountable (as Maura R. Grossman, Paul W. Grimm and Daniel G. Brown noted in this article). Apparently, courts – even appellate courts – are finding that they need a more blatant reminder for the attorney as to their duties in their representations to the court.

So, what do you think? Are you surprised that the 5th Circuit is considering a certification rule for generative AI? Please share any comments you might have or if you’d like to know more about a particular topic.

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