A
new
decision
from
the
California
Court
of
Appeals
adds
an
intriguing
dimension
to
the
growing
body
of
AI
hallucination
sanctions
cases,
raising
the
question
of
a
lawyer’s
duty
to
detect
fabricated,
AI-generated
citations
—
not
in
the
lawyer’s
own
filings,
but
in
an
opponent’s.
While
the
court
did
impose
a
$10,000
sanction
on
the
attorney
who
filed
two
appellate
briefs
containing
fake
citations,
it
also
declined
to
award
attorneys’
fees
or
costs
to
the
opposing
counsel,
because
of
counsel’s
failure
to
report
the
fake
citations
to
the
court
or
even
to
detect
them.
That
makes
this
what
may
be
the
first
judicial
decision
to
touch
on
on
whether
lawyers
have
a
duty
to
detect
and
report
their
opponents’
AI-generated
fake
citations.
Fabricated
Quotations
The
basic
facts
of
the
case,
Noland
v.
Land
of
the
Free,
L.P.,
follow
a
now-familiar
pattern.
The
appeal
itself,
the
court
said,
was
“unremarkable,”
and
would
not
normally
have
warranted
publication.
But
what
made
the
decision
worthy
of
publication,
said
the
court,
was
the
plaintiff’s
extensive
use
of
fake,
AI-generated
citations
and
quotations.
“Although
the
generation
of
fake
legal
authority
by
AI
sources
has
been
widely
commented
on
by
federal
and
out-of-state
courts
and
reported
by
many
media
sources,
no
California
court
has
addressed
this
issue,”
the
court
said.
The
attorney,
Amir
Mostafavi,
used
ChatGPT
and
other
AI
tools
to
“enhance”
his
appellate
briefs,
then
failed
to
verify
the
citations
before
filing.
The
court
found
that
21
of
23
case
quotations
in
his
opening
brief
were
fabricated,
along
with
many
more
in
the
reply
brief.
Some
cases
did
not
discuss
the
topics
for
which
they
were
cited,
and
others
did
not
exist
at
all.
“Nearly
all
of
the
legal
quotations
in
plaintiff’s
opening
brief,
and
many
of
the
quotations
in
plaintiff’s
reply
brief,
are
fabricated,”
the
court
said.
Finding
that
both
California’s
Code
of
Civil
Procedure
and
Rules
of
Court
permit
an
appellate
court
to
impose
sanctions
for
filing
a
frivolous
appeal,
the
court
imposed
a
sanction
of
$10,000
to
be
paid
to
the
court
and
referred
the
lawyer
to
the
state
bar.
“Attorney
Mostafavi’s
fabricated
citations
and
erroneous
statements
of
law
have
required
this
court
to
spend
excessive
time
on
this
otherwise
straightforward
appeal
to
attempt
to
track
down
fabricated
legal
authority
and
then
to
research
the
issues
presented
without
plaintiff’s
assistance,”
the
court
said.
The
Twist:
No
Fees
for
Opposing
Counsel
Had
the
court
stopped
there,
this
case
might
seem
little
different
than
the
hundreds
of
cases
in
which
lawyers’
use
of
AI
has
resulted
in
filings
containing
hallucinated
citations.
But
what
makes
Noland
unique
is
the
court’s
explicit
decision
not
to
award
attorneys’
fees
to
the
opposing
counsel,
despite
finding
the
appeal
frivolous
and
despite
opposing
counsel’s
request
for
such
an
award.
The
court
explained:
“We
decline
to
order
sanctions
payable
to
opposing
counsel.
While
we
have
no
doubt
that
such
sanctions
would
be
appropriate
in
some
cases,
in
the
present
case
respondents
did
not
alert
the
court
to
the
fabricated
citations
and
appear
to
have
become
aware
of
the
issue
only
when
the
court
issued
its
order
to
show
cause.”
Although
the
court
did
not
elaborate
beyond
that
statement,
its
reasoning
raises
the
question:
What
is
the
role
of
opposing
counsel
in
policing
AI
hallucinations?
Put
another
way:
What
is
a
lawyer’s
responsibility
to
detect
and
report
an
opponent’s
use
of
hallucinated
citations?
The
court
appears
to
suggest
that
had
opposing
counsel
spotted
the
fake
citations
and
alerted
the
court,
they
might
have
been
entitled
to
be
awarded
sanctions.
Conversely,
their
failure
to
detect
the
fabrications
made
them
undeserving
of
compensation.
The
Broader
Implications
Before
the
advent
of
gen
AI,
lawyers
had
been
able
to
fairly
safely
rely
on
the
assumption
that
cases
cited
by
an
opponent
actually
existed.
Of
course,
that
did
not
mean
that
lawyers
could
go
without
checking
those
citations.
While
it
was
unlikely
that
the
citation
was
fabricated,
it
could
well
be
that
the
case
did
not
stand
for
the
cited
proposition
or
that
a
quote
from
the
case
was
erroneous
or
out
of
context.
So
checking
citations,
even
before
gen
AI,
was
simply
good
lawyering.
If
you
are
going
to
respond
to
an
argument,
you
need
to
explore
the
foundations
on
which
that
argument
was
constructed.
But
in
the
AI
era,
could
it
be
that
lawyers
have
a
heightened
responsibility
to
check
their
opponents’
citations?
Does
the
responsibility
now
extend
not
just
to
the
lawyer’s
clients,
but
to
the
courts?
It
is
fair
to
say,
I
think,
that
the
Noland
court’s
denial
of
attorney
fees
to
defendants
who
failed
to
spot
obvious
fabrications
hints
at
an
evolving
standard
of
professional
competence.
In
denying
opposing
counsel’s
request
for
attorneys’
fees,
the
Noland
court
appeared
to
fault
counsel
on
two
counts:
their
failure
to
alert
the
court
to
the
fabricated
citations,
and
their
failure
to
even
notice
them
in
the
first
place.
The
Noland
court’s
decision
seems
to
suggest
that,
at
minimum,
lawyers
who
spot
AI
hallucinations
and
alert
the
court
may
be
rewarded
(or
at
least
may
be
eligible
to
be
reward),
while
those
who
miss
them
may
not
be
entitled
to
fee-shifting
even
when
the
opposing
brief
is
ultimately
sanctioned.
A
Developing
Standard
While
Noland
appears
to
be
the
first
case
to
explicitly
address
opposing
counsel’s
role
in
detecting
AI
hallucinations,
it
likely
won’t
be
the
last.
As
AI-generated
fake
citations
become
more
sophisticated
and
potentially
harder
to
detect,
courts
will
need
to
develop
clearer
standards
about
what
level
of
diligence
opposing
counsel
should
exercise.
The
Noland
court’s
terse
approach
of
declining
to
award
fees
without
defining
a
bright-line
rule
leaves
the
door
open
for
other
courts
to
provide
more
guidance.
Will
spotting
AI
hallucinations
become
part
of
the
expected
professional
competence
of
practicing
attorneys?
My
guess
is
that
courts
will
increasingly
expect
all
parties
to
exercise
heightened
vigilance
in
an
era
where
fake
legal
authorities
can
be
generated
at
the
click
of
a
button.
[Hat
tip
to
David
Kluft,
assistant
bar
counsel
in
Massachusetts,
who
posted
this
case
on
LinkedIn.]