As I reported back in December, the 5th Circuit was considering a generative AI certification rule. They have decided not to adopt it.

According to Reuters (5th Circuit scraps plans to adopt AI rule after lawyers object, written by Nate Raymond and available here), the 5th U.S. Circuit Court of Appeals said it had decided not to adopt a generative AI certification rule it first proposed in November after taking into consideration the use of AI in the legal practice and public comment from lawyers, which had been largely negative.

The proposed rule would have amended 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 would have led to rejection of the document and sanctions imposed on the person who filed the document.

If adopted, the 5th Circuit would have become the first of the 13 federal appeals courts to have a rule specifically governing AI use, though several district courts and judges nationally have adopted policies. Here’s a link to a resource with a list of those.

The tide may be turning after some early standing orders and rule change considerations. Members of the bar in public comments submitted to the 5th Circuit largely opposed its proposal, arguing that rules already on the books were good enough to deal with any issues with the technology, including ensuring the accuracy of court filings.

The article Is Disclosure and Certification of the Use of Generative AI Really Necessary?, written by Maura R. Grossman, Paul W. Grimm and Daniel G. Brown last year (and covered by me here) does a great job of illustrating how current rules in place should be enough to hold parties accountable for their filings – with or without AI.

Hat tip to Judge Ron Hedges (ret.) for the heads up on the 5th circuit decision (in yesterday’s EDRM Global Advisory Council meeting)!

So, what do you think? Should any court adopt a generative AI certification rule? Please share any comments you might have or if you’d like to know more about a particular topic.

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