Ride the Lightning

ChatGPT Lawyers Whose Brief Cited Non-existent Cases: The Sanctions Seem Modest

June 23, 2023

The New York Times reported on June 22 that Federal District Court Judge P. Kevin Castel imposed a fine of $5,000 on the two lawyers (who made national headlines) when they filed with the court a brief which contained some non-existent cases made up by ChatGPT.

Judge Castel did issue some stern criticism and ordered lawyers Steven A. Schwartz and Peter LoDuca to apologize to the real-life judges who were named in the made up cases.

It made me laugh that Judge Castel said he would not mandate that the lawyers apologize to those judges, “because a compelled apology is not a sincere apology.” I’m on board with that and with the judge’s statement that “Any decision to apologize is left to respondents.”

This rather ordinary case captivated lawyers everywhere. All were curious to see how the judge would handle a situation where Mr. Schwartz prepared a brief with the assistance of ChatGPT but did not seek independent verification of the cases cited from known reputable sources.

And, to make matters worse, the judge noted that the legal analysis in the brief was “gibberish.”

When the judge gave Mr. LoDuca a week to produce the cases cited in the brief, he responded that he was on vacation and asked for another week to provide the information, which the judge granted. But LoDuca admitted at the June 8^th hearing that he had NOT been on vacation but wanted to give Mr. Schwartz more time to respond to the allegations.

The court noted that the lawyers had abandoned their responsibilities “then continued to stand by the fake opinions after judicial orders called their existence into question.”

The judge did take note that the lawyers’ firm, Levidow, Levidow & Oberman, arranged for outside lawyers to give a mandatory training program on technical competence and AI tools. He also noted that the lawyers had acknowledged their embarrassment and remorse after widespread publicity about the case.

The firm said it was considering whether to appeal. I humbly submit that doing so would be crazy. The firm should be giving thanks that the sanctions were so slight.

The firm stated, “We have reviewed the Court’s order and fully intend to comply with it; however, we respectfully disagree with the finding that anyone at our firm acted in bad faith. We have already apologized to the Court and our client. We continue to believe that in the face of what even the Court acknowledged was an unprecedented situation, we made a good faith mistake in failing to believe that a piece of technology could be making up cases out of whole cloth.”

Castel wrote that he had considered “the significant publicity generated by Respondents’ actions” as he weighed the need for specific deterrence.

“The Court credits the sincerity of Respondents when they described their embarrassment and remorse,” Castel wrote. “The fake cases were not submitted for any respondent’s financial gain and were not done out of personal animus. Respondents do not have a history of disciplinary violations and there is a low likelihood that they will repeat the actions described herein.”

I think you can take that certainty to the bank.

It was noteworthy that the judge did not refer the lawyers for possible disciplinary action. However, disciplinary authorities could start their own investigation.

Is all the negative and embarrassing publicity punishment enough? That seems to be largely what the judge was thinking – we’ll see what the disciplinary authorities decide.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225, Fairfax, VA 22030
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Digital Forensics/Cybersecurity/Information Technology
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