Over the past three years, much of the legal profession’s attention to AI ethics has focused on lawyers filing documents with fabricated citations. But judges make citation errors, too. In one particularly ironic example, the U.S. Court of Appeals for the Fifth Circuit issued an official notice warning lawyers to verify the accuracy of their filings, then cited the wrong rule itself.
The notice came amid growing concern about lawyers’ and litigants’ misuse of generative AI. The number of recorded instances of litigants filing erroneous authorities has exceeded 2,046 cases worldwide, including 1,397 in the United States. Financial consequences have even exceeded $100,000 in a single matter.
Some courts have responded with standing orders and certification rules requiring parties to verify the accuracy of AI-generated material before filing. Most recently, the Tenth Circuit Court of Appeals issued a proposed rule requiring human verification of AI-generated materials, with a planned effective date of January 1, 2027.
The Fifth Circuit considered a similar approach in 2024. Its proposal would have required counsel and unrepresented litigants to certify either that they had not used generative AI to draft a filing or that a human had reviewed and approved the generated material, including citations and legal analysis.
In June 2024, the court declined to adopt the proposal. Its official notice instead emphasized existing duties to check filings for truthfulness and accuracy. It concluded: “‘I used AI’ will not be an excuse for an otherwise sanctionable offense.”
The authority cited for those duties was Federal Rule of Appellate Procedure 6(b)(1)(B).
But that was an incorrect citation. That provision concerns notice-of-appeal forms in certain bankruptcy appeals. It does not establish the professional-conduct obligation the notice appears to invoke.
The intended reference appears to have been Federal Rule of Appellate Procedure 46(b)(1)(B), which permits suspension or disbarment for conduct unbecoming a member of the court’s bar. An apparently missing digit changed the subject from attorney discipline to bankruptcy procedure.
