All lawyers (hopefully) know by now to either not use AI for our own briefs, or if we do use it, to check any citations to make sure they, you know, exist. And we probably know by now to check briefs from opposing counsel in the hope that you can embarrass them in front of the judge. 

But how closely are you checking cites in briefs drafted by your associates, sub-contractors or co-counsel before you sign them? How much are you relying on their word that all is in order?

This week, an Arizona federal judge sanctioned an attorney for the apparent misuse of AI in a brief in Mavy v. Commissioner of Social Security Administration, Case No. CV-25-00689-PHX-KML (ASB). In a 24-page opinion (complete with a table of failings - ouch) the court set out in painstaking detail the attorney’s misdeeds. As the court makes clear (and as is frighteningly common these days) many cases cited either did not exist, did not support the proposition for which they were cited, or misquoted or miscited the authority. 

The attorney in question took full responsibility as the attorney of record (and the only attorney that signed the brief), but by way of explanation laid the blame at the feet of (1) the contract attorney she hired to draft the brief, and (2) the junior attorney that was supposed to be supervising that contract attorney. Unsurprisingly the court gave this short shrift: not only was it the partner’s overall responsibility to supervise the entire matter (MRPC 5.1), but more than that, the duty to satisfy oneself that a brief you sign is factually and legally supported cannot be delegated. At all. Not to a partner, and not to a trusted subordinate. In this instance the attorney claimed to have reviewed the brief prior to signing and submitting it, but, as the Court noted, “it stands to reason that if Counsel had reviewed the Brief she was signing her name to, she would have removed fictitious, misleading, and unsupported citations.” 

The sanctions include revocation of the attorney’s pro hac status; striking the document in question; an order requiring the attorney to write to every judge to whom she attributed fake cases notifying them of what has transpired; and (my personal favorite) an order requiring her to give a copy of the 24-page order to every Judge who presides over any case in which she is attorney of record. For her part, the attorney supposedly says she will fight the order. 

So, some practice points: 

1: Don’t cite fake cases (obviously). 

2: Supervise your juniors, and know what you are signing your name to (this also should be obvious, but we are where we are). 

3: If you don’t do that, don’t hang the junior out to dry in front of the judge – fall on that sword! The buck stops with you. Obfuscation is not going to get you anywhere. 

But reader, there’s more: it’s not just juniors you need to be wary of! In another case last month, a firm submitted a brief that had been drafted by trusted co-counsel. Co-counsel presented it to the firm in question “in near final form.” That firm added a paragraph, signed it, and because the original drafter was travelling, filed it with the court. The brief included a case that just didn’t exist, three cases that were real but used fake quotes, and two that were real but misrepresented the holding. 

The firm that drafted the document withdrew as counsel and took the blame, but it’s just an embarrassing episode all around. And it makes clear that, even if you didn’t draft the document, if your name is in the signature block you are going to get tarred with whatever shenanigans the drafter pulled.

So practice point 4: No matter how much you trust your co-counsel, or how well-respected a firm it is, it is worth running things drafted by anyone else through a thorough cite check. You can also ask co-counsel if they used AI and whether they are sure the cases are real – even using the Arizona Court’s table format and asking them to sign off on each one? -  but that is borderline offensive and may harm the ongoing relationship. 

Stay safe out there.