Summary
The Fifth Circuit sanctioned attorney Heather Hersh $2,500 after finding that she used generative artificial intelligence to draft a substantial portion of an appellate reply brief containing fabricated quotations, inaccurate citations, and misrepresentations of law and fact. The court relied on Federal Rule of Appellate Procedure 46(c) and its inherent authority to sanction abuse of the judicial process, emphasizing counsel's failure to verify the brief and misleading responses to the court's show-cause order.
Topics
Practice areas
Questions Presented
- Whether an attorney's use of generative AI to prepare an appellate brief, without verifying the accuracy of the generated citations, quotations, legal propositions, and factual assertions, constitutes sanctionable conduct.
- Whether the Fifth Circuit may impose monetary sanctions under Federal Rule of Appellate Procedure 46(c) and its inherent authority to sanction abuse of the judicial process.
- Whether counsel's misleading and evasive responses to a show-cause order independently justify sanctions.
Holdings
- An attorney who uses generative AI to draft a substantial portion of a brief must verify the accuracy of the generated legal propositions, authorities, quotations, and factual assertions before filing. Failure to do so, resulting in fabricated quotations and misrepresentations to the court, constitutes conduct unbecoming a member of the bar and abuse of the judicial process.
- Monetary sanctions may be imposed under Federal Rule of Appellate Procedure 46(c) for conduct unbecoming a member of the bar.
- The Fifth Circuit may use its inherent authority to sanction an attorney who submits a brief riddled with fabricated quotations and assertions and then misleads the court about the source of the errors.
Key quotations
“To ethically use generative AI in the practice of law—which we do not dispute can be helpful if done properly and carefully—a lawyer must “ensure that the legal propositions and authority generated are trustworthy.”” (at 5)
“Submitting a brief riddled with fabricated quotations and assertions is such an abuse.” (at 14)
“However, when confronted with a serious ethical misstep, Hersh misled, evaded, and violated her duties as an officer of this court.” (at 15)
Factual background
Fletcher alleged that he was the victim of identity theft and that another person had opened an automobile-finance account in his name. The district court determined that counsel had failed to conduct even a minimal pre-suit investigation and that the claims were legally barred or based on false factual allegations. On appeal, counsel Heather Hersh submitted a reply brief containing numerous fabricated quotations, inaccurate legal citations, and misstatements of fact, then gave evasive and misleading responses after the court ordered her to show cause.
Procedural history
Robert Fletcher brought Fair Credit Reporting Act claims against Experian and Bridgecrest in the Southern District of Texas. The district court sanctioned Shawn Jaffer and Jaffer & Associates, ordering payment of approximately $20,000 to Bridgecrest under Federal Rule of Civil Procedure 11 and approximately $13,000 to Experian under 28 U.S.C. § 1927. The Fifth Circuit previously vacated that order, holding that Jaffer required a greater opportunity to defend his pre-suit investigation and that § 1927 did not apply because the early discovery of false allegations did not multiply the proceedings. The court then separately sanctioned Heather Hersh, who signed Fletcher's reply brief, for using generative AI without verifying its output and for misleading the court in response to the show-cause order.