A provocative perspective from a D.C. Court of Appeals judge, Stephen Glickman, who joined the concurrence in Douglas v. Deutsche Bank Nat’l Trust Co. (details on that matter here):
The panel’s decision, which I support, contends that “every attorney who signed the brief bears some responsibility” for the inclusion of improper citations. I broadly endorse that notion, though with one clarification about what it should entail. The opinion also adopts, with evident approval, the Ninth Circuit’s assertion that “[a] competent and diligent attorney cannot decline to ‘vet’ citations, in a brief he signs, for substantive validity—in other words, to read the cited authorities and ensure that they are on point.” In the Ninth Circuit case presently before it, there was only a single signatory on the brief in question.
If the quoted statement is read to imply that every signatory on any multi-signature brief must personally verify every citation for accuracy, I dissent….
Preliminarily, the label “signatory” may be misleading. Appellate briefs typically list multiple attorneys who represent the party on whose behalf the briefs are filed. Ordinarily, only one of those attorneys actually signs the document. For purposes here, however, all named attorneys are regarded as “signatories” who stand behind the brief and who (usually, though not always) contributed to it. (It is not unheard of for a brief to enumerate the counsel who represent the party in the appeal even if they did not personally draft the brief or were not its principal authors.) This does not mean, however, that all these “signatories” necessarily share exactly the same duties to ensure that the brief complies with ethical and other requirements.
Meeting the obligation to guard against AI-generated (or other invalid) citations can be a collaborative effort that does not require every signatory to personally verify every citation in the brief. Imposing such a requirement would be impractical, unduly burdensome, and unnecessarily duplicative given the existence of reasonable alternative safeguards against erroneous citations. {See Lake v. Gates, 130 F.4th 1054, 1062 (9th Cir. 2025) (Bumatay, J., concurring in the judgment only) (Disagreeing with the majority’s conclusion that federal Rule 11 allowed the trial court to sanction an attorney who participated on a brief as “of counsel” and only contributed a discrete portion to the offending brief, because “[a]s a textual matter…, Rule 11 permits different levels of accountability for different attorneys in a case…. To encourage the participation of specialized attorneys and to improve the quality of advocacy in our courts, we should have adopted a rule that recognizes the circumscribed role that some attorneys with subject-matter expertise may play in litigation.”).}.
Suppose, for instance, that a law firm assigns distinct portions of a complex brief to various associates for initial drafting. Each associate is certainly responsible for the accuracy of the citations in the portion assigned to them; in general, the principal drafter (or drafters) of the brief bears the primary duty of performing cite-checking. Yet that does not imply that every associate is responsible for double-checking a section that was assigned to and prepared by another associate.
Or imagine the typical brief this court receives from the United States Attorney’s Office in criminal appeals. Each such brief lists not only the author (who also serves as the designated counsel for oral argument) but also the Assistant United States Attorneys who represented the government at trial (who may have advised appellate counsel but who did not participate in drafting the legal arguments in the brief); the Chief of the Criminal Appellate Section (who supervises the production of a large number of briefs and cannot reasonably be expected to review every citation in every one); and the United States Attorney herself (same). It would be unrealistic, and unnecessary as overkill, to demand that each of those lawyers perform cite-checking on any single brief.
There are other, more practical procedures that can be employed to ensure that AI-generated hallucinations do not lead to fake citations in briefs and related filings. I suspect the core issue of fake citations (along with other AI-generated errors I discuss below) arises mainly when lawyers ask AI to draft a brief from nothing for them—a practice supervisors can (and, in my view, should) prohibit outright. (More on this below.)
Nevertheless, law firms and law departments can adopt supplemental measures to reduce AI-hallucinated citations and other AI-generated mistakes in their briefs. Such measures may include training (and retraining) lawyers in proper AI usage; implementing clear policies governing such use and providing for disciplinary consequences when appropriate; and requiring attorneys to confirm their adherence to those policies. It should be made crystal clear that it is likely that any problematic, fabricated citations will eventually surface, and that the penalties for the offender will be severe.
Additionally, if it is desirable to verify citations and case descriptions in all briefs before filing, such “vetting” can be cost-effectively performed by a trained paralegal. Triple or quadruple checking by other lawyers (whether or not they are signatories on the brief) is unnecessary and would be overly burdensome and costly.
{I should not be understood as suggesting that only a lawyer who drafted the portion of a brief containing AI-generated errors (or other AI-generated issues, see infra) may face sanctions. For example, if training and supervision have been neglected, I believe supervising lawyers may bear responsibility as well.}
As the opinion itself indicates, other judges may disagree (see, for instance, this post), and lawyers certainly should not feel secure that they will evade accountability for hallucinations merely because they did not draft that portion of the brief. And of course, irrespective of whether any formal sanctions exist for the attorney, such hallucinations threaten the client’s interests by risking loss of the case, harming the firm’s reputation, inviting a malpractice suit against the firm, and undermining the client’s relationship with everyone at the firm, among other consequences. Still, the judge’s point that it is unreasonable to expect every signing lawyer to personally verify every citation appears to be sound to me.
