EDITED BY:
Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Carrie E. Parker, Legal Editor
Luzianne Jones, Design & Publishing Editor
PUBLISHED BY: Joseph, Hollander & Craft LLC
PUBLICATION DATE: November 28, 2025
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 6, No. 11
FEATURE ARTICLE: Judicial AI Problems
For the past several years, the legal profession has become increasingly aware of the problems and ethical dangers involved in the use of artificial intelligence in law practice, especially generative AI. Particularly troublesome has been that AI platforms frequently return answers to prompts that are either false (hallucinations) or incorrect. Reports of close to 500 such incidents have been published, and judges have begun to sanction lawyers who do not prevent these errors before documents are filed with their courts.
In the past year, a related problem has sprung up. It is not only lawyers who are using generative AI. It is also judges. And that is a great problem, perhaps greater than its misuse by some lawyers.
. . .
NEW AUTHORITY: Noland V. Land of the Free
On September 12, 2025, a California court issued an opinion in what should have been a rather ordinary case. What took it out of the ordinary category was the fact that the plaintiff’s attorney submitted a brief riddled with hallucinated cases for which the attorney was sanctioned by $10,000 payable to the court.
In addition to rejecting the plaintiff’s substantive claims on appeal, the opinion explains why reliance on fabricated legal authority rendered the appeal frivolous, violative of court rules, and worthy of a monetary sanction:
To state the obvious, it is a fundamental duty of attorneys to read the legal authorities they cite in appellate briefs or any other court filings to determine that the authorities stand for the propositions for which they are cited. Plainly, counsel did not read the cases he cited before filing his appellate briefs: Had he read them, he would have discovered, as we did, that the cases did not contain the language he purported to quote, did not support the propositions for which they were cited, or did not exist. (See Benjamin v. Costco Wholesale Corporation, supra, 779 F.Supp.3d at p. 343 [“an attorney who submits fake cases clearly has not read those nonexistent cases, which is a violation of [the federal equivalent of § 128.7]”]; Willis v. U.S. Bank National Association as Trustee, Igloo Series Trust (N.D. Tex., May 15, 2025, No. 3:25-cv-516-BN) 2025 WL 1408897, at *2 [same].) Counsel thus fundamentally abdicated his responsibility to the court and to his client. (See Kleveland v. Siegel & Wolensky, LLP(2013) 215 Cal.App.4th 534, 559 [“ ‘It is critical to both the bench and the bar that we be able to rely on the honesty of counsel. The term “officer of the court,” with all the assumptions of honor and integrity that append to it, must not be allowed to lose its significance’ ”].)
Counsel acknowledges that his reliance on generative AI to prepare appellate briefs was “inexcusable,” but he urges that he should not be sanctioned because he was not aware that AI can fabricate legal authority and did not intend to deceive the court. Although we take counsel at his word—and although there is nothing inherently wrong with an attorney appropriately using AI in a law practice—before filing any court document, an attorney must “carefully check every case citation, fact, and argument to make sure that they are correct and proper. Attorneys cannot delegate that role to AI, computers, robots, or any other form of technology. Just as a competent attorney would very carefully check the veracity and accuracy of all case citations in any pleading, motion, response, reply, or other paper prepared by a law clerk, intern, or other attorney before it is filed, the same holds true when attorneys utilize AI or any other form of technology.” (See Versant, supra, 2025 WL 1440351, at *4.)
Noland v. Land of the Free, L.P., 114 Cal. App. 5th 426, 445-446, 336 Cal. Rptr. 3d 897, 913 (2025).
It is particularly interesting that the court declined to award sanctions payable to defendant, offering reasoning that has caught the attention of many in the Bar concerned about increasing lawyer obligations when using AI:
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.
Id. at 448. This quite short, unexplained paragraph has created fear that attorneys may now be held responsible for not only discovering their own AI generated errors, but also those of their opponents. That would expand attorney obligations by an enormous amount. Of course, whether the California court intended such an expansion and whether other courts will follow suit remains to be determined.
ETHICS & MALPRACTICE RESEARCH TIP: New Articles from the Current Index to Legal Periodicals
1.) Jonathan H. Choi & Daniel Schwarcz, “AI Assistance in Legal Analysis: An Empirical Study,” 73 J. Legal Educ. 384 (2025).
The more we explore the actual use of AI in the various aspects of the legal profession, the more we can make better decisions on regulating such use.
2.) Benjamin R. Syroka, “You Just Can’t Beat the Machine: A Lawyer’s Duty to Adapt in the Age of Artificial Intelligence,” 56 U. Tol. L. Rev. 315 (2025).
This is one more interesting attempt to understand how the profession is adapting to AI.
3.) Margaret Tarkington, “Lawyers and the Abuse of Government Power,” 58 U. Mich. J.L. Reform 423 (2025).
Professor Margaret Tarkington argues, “The legal profession needs to amend the rules of professional conduct to protect our constitutional system of government from those most likely to effectively undermine it: lawyers.”
A BLAST FROM THE PAST: The Law School Papers of Benjamin F. Butler
…Equally certain is it, that in proportion to the wisdom and equity o the laws, and to the faithfulness and promptitude with which they are administered, will be, in any given community, the virtue and prosperity of its members, and its prospects of advancement of strength and honour. On the other hand, all experience has shown, that little good can be derived from our most perfect system of jurisprudence, if its administration be committed to corrupt or incompetent hands.
— Benjamin F. Butler, The Law School Papers of Benjamin F. Butler 168 (Ronald L. Brown ed. 1987) (1838).
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 6, No. 11
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