2nd Circ. Rebukes Atty For Fake Citation In Latest AI Blunder

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The Second Circuit referred a New York attorney for punishment Tuesday for submitting a brief citing a fake case generated by ChatGPT and not checking over the brief to catch the mistake.

A photo illustration with the ChatGPT logo displayed on a smartphone screen.

Lee said she "encountered difficulties in locating a relevant case" and "consequently" used ChatGPT to help with case identification, according to the decision. (Sipa via AP Images)

Jae S. Lee was referred to the Second Circuit's grievance panel through a decision handed down by U.S. Circuit Judges Barrington Parker, Alison Nathan and Sarah Merriam in a per curiam decision. The panel also affirmed a lower court decision to dismiss the underlying complaint of Lee's client.

"The brief presents a false statement of law to this court, and it appears that attorney Lee made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented," the panel said.

Lee admitted that she submitted a reply brief in the appellate case in September citing "Matter of Bourguignon v. Coordinated Behavioral Health Servs. Inc., 114 A.D.3d 947 (3d Dep't 2014)," according to Tuesday's decision — a case the court was unable to find and which proved not to exist.

"I encountered difficulties in locating a relevant case to establish a minimum wage for an injured worker lacking prior year income records for compensation determination," Lee explained to the court when pressed to provide the missing case.

"Consequently, I utilized the ChatGPT service, to which I am a subscribed and paying member, for assistance in case identification," she wrote, as described in the decision. "ChatGPT was previously provided reliable information, such as locating sources for finding an antic furniture key. The case mentioned above was suggested by ChatGPT, I wish to clarify that I did not cite any specific reasoning or decision from this case."

The panel said that attorneys have a responsibility to ensure that any argument they make to the court is "legally tenable," which at a minimum requires them to have read the legal authorities they cite — a condition that was not met in this case.

According to the panel decision, Lee herself told the court that "it is important to recognize that ChatGPT represents a significant technological advancement" and that "it would be prudent for the court to advise legal professionals to exercise caution when utilizing this new technology."

The panel noted that several courts have proposed or enacted local rules or orders to address the use of artificial intelligence tools. "But such a rule is not necessary to inform a licensed attorney, who is a member of the bar of this court, that she must ensure that her submissions to the court are accurate," the panel said.

In the same decision, the panel rejected an appeal from Minhye Park, Lee's client, seeking to overturn a trial court ruling dismissing her case. Park sued Dr. David Dennis Kim, a gynecologist, in 2020, alleging that he negligently mishandled an abortion for her and failed to terminate the pregnancy.

"Over the course of the litigation before the district court, Park continually and willfully failed to respond to and comply with the district court's discovery orders," the appeals panel said.

Lee did not respond to a request for comment Tuesday.

Park is represented by Jae S. Lee of JSL Law Offices PC.

Defendant-appellee David Dennis Kim is represented by Alejandra R. Gil of Heidell Pittoni Murphy & Bach LLP.

The case is Park v. Kim, case number 22-2057, in the U.S. Court of Appeals for the Second Circuit.

--Editing by John C. Davenport.

For a reprint of this article, please contact reprints@law360.com.



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