As I reported last month, the 5th Circuit is considering a certification rule for generative AI. Tomorrow is the last day for public comment on the proposed rule.

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.

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.

As noted in the Notice of Proposed Amendment to 5TH CIR. R. 32.3 here, they “solicit written comments for consideration on the proposed changes through January 4, 2024”, which makes tomorrow the last day for public comment on the proposed rule.

You may mail comments to:

Clerk of Court

U.S. Court of Appeals for the Fifth Circuit

ATTN: Rule Changes

600 South Maestri Place

New Orleans, LA 70130

or send comments electronically to Changes@ca5.uscourts.gov.

Given the slowness of “snail mail”, you probably want to email your comments (if you haven’t already) to the email address above. You may especially want to do so if you agree with this judge or this judge (or these renowned experts, including a former judge) on whether generative AI certifications are necessary. Tomorrow is the last day for public comment on the proposed rule!

Hat tip to Mark Lyon for the reminder on the deadline for public comment!

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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