5th Circuit: Miscited FRAP Rule 6(b)(1)(B) in AI Warning

• The 5th U.S. Circuit Court of Appeals issued a 2024 notice warning lawyers to verify the accuracy of their filings, especially concerning AI-generated content.
• The court stated that using AI would not excuse otherwise sanctionable offenses, but itself miscited Federal Rule of Appellate Procedure 6(b)(1)(B).
• Federal Rule of Appellate Procedure 6(b)(1)(B) concerns bankruptcy appeal forms, while the court likely intended Federal Rule of Appellate Procedure 46(b)(1)(B), which allows for attorney suspension or disbarment.
• The incorrect citation remains on the court's website, though there is no evidence that AI caused the 5th Circuit's error.
• This incident highlights the critical importance for attorneys to independently verify all legal citations, even those found in official court documents.

This incident serves as a stark reminder for legal professionals about the paramount importance of independently verifying all legal citations, irrespective of their source.

The 5th U.S. Circuit Court of Appeals, based in New Orleans, recently issued a significant warning to legal practitioners regarding the accuracy of their submissions. This directive, published in 2024, underscored the existing professional obligations for attorneys to meticulously verify the truthfulness and precision of all court filings. The court's admonition comes amidst growing concerns over "artificial intelligence hallucinations" appearing in legal documents, a phenomenon that has prompted various judicial bodies to mandate verification of AI-generated content.

In its notice, the appellate court explicitly stated that relying on AI would not serve as an acceptable defense for any offense that would otherwise warrant sanctions. However, in a notable oversight, the 5th Circuit miscited a Federal Rule of Appellate Procedure (FRAP) within its own warning. The court referenced Federal Rule of Appellate Procedure 6(b)(1)(B), which pertains specifically to the format and submission of notice-of-appeal forms in certain bankruptcy proceedings.

This particular rule, Federal Rule of Appellate Procedure 6(b)(1)(B), has no direct bearing on the broader professional conduct or disciplinary actions against attorneys for inaccurate filings. The error highlights a critical detail, as the rule cited by the court addresses a very specific procedural aspect rather than the general duty of candor and accuracy that the court intended to emphasize.

The rule the 5th Circuit evidently intended to invoke was Federal Rule of Appellate Procedure 46(b)(1)(B). This distinct rule carries substantial weight, as it authorizes the suspension or disbarment of any attorney for conduct deemed "unbecoming a member of the court’s bar." The discrepancy between the cited and intended rules is a single digit, yet it represents a significant difference in legal scope and consequence.

Despite the clear miscitation, the erroneous reference to Federal Rule of Appellate Procedure 6(b)(1)(B) remains published on the court's official website. This persistence of the incorrect information underscores the challenge of maintaining absolute accuracy even within judicial pronouncements. It is important to note that there is no indication or evidence suggesting that artificial intelligence played any role in the 5th Circuit's own mistake in citing the wrong rule. The error appears to be a human oversight, occurring independently of the AI-related concerns that prompted the original warning.

This incident serves as a stark reminder for legal professionals about the paramount importance of independently verifying all legal citations, irrespective of their source. While the 5th Circuit's warning was directed at attorneys using AI, the court's own error in citing a Federal Rule of Appellate Procedure (FRAP) demonstrates that even official judicial documents can contain inaccuracies. Lawyers and compliance officers are ultimately responsible for the veracity of their submissions, and this responsibility extends to cross-referencing rules and precedents, even when they appear in court orders or notices.

The potential for sanctions, as outlined by the correctly intended Federal Rule of Appellate Procedure 46(b)(1)(B), reinforces the critical need for meticulous attention to detail. An attorney's reliance on a miscited rule, even if originating from a court, could still lead to professional repercussions if it results in a flawed argument or submission. This situation underscores that the duty to "verify court filings accuracy" is comprehensive and continuous, demanding vigilance against errors from any quarter, including those that might inadvertently emerge from the judiciary itself.

Lawyers and compliance officers must independently verify all citations, including those found in court orders, to ensure accuracy and avoid potential sanctions under rules like FRAP 46(b)(1)(B), particularly when relying on AI-generated content. This incident underscores the ultimate responsibility of counsel for the veracity of their submissions.

Source: Original reporting via National Law Review