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: April 30, 2026
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 7, No. 4
FEATURE ARTICLE: Defending & Preventing AI Hallucination
In last month’s Legal Ethics & Malpractice Reporter, we outlined the increasing number of cases involving the submission of hallucinated case law by lawyers and law firms and the increasing imposition of sanctions by courts under Federal Rule of Civil Procedure 11 and related state rules. Here, we examine the defenses that have been raised by attorneys and firms that have submitted fake citations and how courts have reacted to them.
I Didn’t Know What I Was Doing
The defense of ignorance has proven to be a bad choice. Courts have cited many rules when addressing the issue of hallucinated law—most frequently FRCP 11 and Rules of Professional Conduct 1.1, 3.1-3.4, and 5.1-5.4. None of these rules mentions intent. Accordingly, pleading lack of intent to be technically incompetent or lack if intent to misinform the court is not likely to be effective. It might also anger the court.
. . .
NEW AUTHORITY: ABA Formal Opinion 522
On April 8, 2026, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 522, regarding a lawyer’s obligation to disclose information about grounds for judge’s disqualification.
Of course, judges are required to consider disqualification under Rule 2.11 of the Judicial Code of Conduct, which states that
A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned . . . .
But there are times when a judge may not know that there are grounds for such a disqualification. And Opinion 522 concludes that Rule of Professional Conduct 8.4(d) requires the lawyer, as an officer of the court, to disclose that information to the tribunal.
When would a judge not know the judge’s impartiality might reasonably be questioned in connection with a proceeding? Opinion 522 offers four examples.
Illustration 1: Prior Employment Connection
A prosecutor is assigned to represent the state in post-conviction proceedings. The assigned judge previously served as a supervisor in the prosecutor’s office. The prosecutor learns from the file that, while working in the prosecutor’s office, the judge supervised the trial prosecutor in the case. The defendant’s lawyer is evidently unaware of the judge’s supervisory responsibility for an earlier stage of the case, and the judge may not recall it.
Illustration 2: Campaign Contribution
A lawyer representing a party in a civil case learns from the client that the client was a major financial supporter of the presiding judge’s recent judicial election campaign. The client acknowledges having made a significant contribution to a political action committee earmarked for the judge’s campaign, but there is no public record of the contribution, and it is uncertain whether the judge knows of it.
Illustration 3: Spouse’s Law Firm Involvement
A lawyer learns that co-counsel for another party in a consolidated civil action has engaged the judge’s spouse’s law firm for related consulting work on discovery strategy. The lawyer knows of this fact because an associate from the spouse’s firm copied the lawyer on an email exchange related to scheduling depositions.
Illustration 4: Counsel’s Business Relationship with Judge’s Family Member
A lawyer for a party in a civil action recently became a minority shareholder in a local business. The lawyer knows that the judge’s adult child is an executive and major investor in the business.
According to Opinion 522, when a lawyer has “actual knowledge” of some similar reason for judicial recusal, Model Rule of Professional Conduct 8.4(d) requires that the lawyer consider disclosing those facts if (a) the information is reasonably likely to require recusal and (b) the disclosure can be made without violating the lawyer’s confidentiality obligations under Model Rule 1.6 or Model Rule 1.9.
The Opinion’s reasoning and its interpretation of the scope of Rule 8.4(d) may surprise some lawyers. The Opinion’s broad basis for the ruling that this obligation arises from a lawyer’s role as an “officer of the court” may raise some objections as well. Because of the possible novelty of the Opinion’s reasoning and because of its potential broad impact on litigation, every lawyer should read it in detail.
ETHICS & MALPRACTICE RESEARCH TIP: New Article on Legal Malpractice & Ethics
Michael D. Murray, Algorithmic Ethics in an Era of Agentic AI Advocacy: An Analysis of AI’s Impact on the Model Rules of Professional Conduct and the Model Code of Judicial Conduct, 16 ST. MARY’S J. ON LEGAL MALPRACTICE & ETHICS 279 (2026), online at https://commons.stmarytx.edu/lmej/vol16/iss2/4
In this article, Murray dives into issues related to the ethical use of AI in law practice and judicial conduct, rule by rule.
A BLAST FROM THE PAST: De re publica
Yet to possess virtue, like some art, without exercising it, is insufficient. Art indeed, when not effective, is still comprehended in science. The efficacy of all virtue consists in its use. Its greatest end is the government of states, and the perfection not in words but in deeds, of those very things which are taught in the halls. For nothing is propounded by philosophers, concerning what is esteemed to be just and proper, that is not confirmed and assured by those who have legislated for states. For from whence springs piety, or from whom religion? Whence the law, either of nations, or that which is called civil? Whence justice, faith, equity? Whence modesty, continence, the dread of turpitude, the love of praise and esteem? Whence fortitude in trouble and dangers? From those who having laid a foundation for these things in early education, have strengthened some of them by the influence of manners, and sanctioned others by the influence of laws. Of Xenocrates, one of the noblest of philosophers, it is said, that when he was asked what his disciples learnt of him, he replied “to do that of their own choice, which the laws enjoined them to do,” therefore the citizen who obliges every one by the authority and fear of the law to do that, which philosophers by reasoning, with difficulty persuade a few to do, is to be preferred to those learned men who only dispute about these things. For which of their orations, however exquisite, can be compared in value to a well constituted state, to public right and to morals. Truly as great and powerful cities, as Ennius says, are as I think, to be preferred to villages and castles; so those who stand pre-eminent in those cities, in authority and counsel, are to be esteemed far before those in wisdom, who are altogether ignorant of the conduct of public affairs. And since we are chiefly urged by a desire to increase the possessions of the human race, and seek by our counsels and labors, to surround the life of man with gratification and security, and are incited by the instincts of nature to these enjoyments; let us hold the course which was always that of the best men: nor attend to those signals which speculative philosophers make from their retirement, to allure back those who are already far advanced.
— Marcus Tullius Cicero, De re publica, tr. G.W. Featherstonehaugh (1829).
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 7, No. 4
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