Most of the time, when a lawyer unwittingly cites a bunch of fake cases spit out by artificial intelligence, it’s because they never bothered to figure out how the product worked or even superficially consider the ethical implications. They plead with the judge that they’re just a humble scribe of Ashurbanipal who couldn’t possibly grasp the powerful forces involved in asking a mansplaining-as-a-service bot to magic up some cases. As an excuse it doesn’t always work, but tales of ignorance have, thus far, stayed many a judge’s hand.
But when the hallucinations come from a lawyer who once published the article “Artifical Intelligence in the Legal Profession: Ethical Considerations,” there’s not a ton of wiggle room.
Goldberg Segalla’s Danielle Malaty, who authored the article about ethics, is now out after taking responsibility for a fake cite in a Chicago Housing Authority filing asking the judge to reconsider a jury’s $24 million verdict in a lead paint poisoning case. The Authority is said to have learned about the lead paint hazard in 1992 and it’s hard to contest liability for a harm you’ve known about since End of the Road charted. But the firm struck gold with an Illinois Supreme Court cite, Mack v. Anderson, that could not have supported the CHA’s argument better… because it was invented out of thin microchips by ChatGPT.
From the Chicago Tribune:
At the hearing, Danielle Malaty, the attorney responsible for the mistake, told the judge she did not think ChatGPT could create fictitious legal citations and did not check to ensure the case was legitimate. Three other Goldberg Segalla attorneys then reviewed the draft motion — including Mason, who served as the final reviewer — as well as CHA’s in-house counsel, before it was filed with the court. Malaty was terminated from Goldberg Segalla, where she had been a partner, following her use of AI. The firm, at the time, had an AI policy that banned its use.
How did this happen? Was the firm huffing the same lead paint that Chicago Housing doesn’t want to pay for foisting on kids?
According to the Tribune account, lead counsel on the case, Larry Mason, said that “An exhaustive investigation revealed that one attorney, in direct violation of Goldberg Segalla’s AI use policy, used AI technology and failed to verify the AI citation before including the case and surrounding sentence describing its fictitious holding.” Not quite sure what this policy even means… has the firm banned “AI” generally, because that’s dumb. It’s going to be embedded in the guts of everything lawyers do soon enough — a general objection to AI is like lawyers in the 90s informing the court that they’re committed to never allowing online legal research. Hopefully the policy is more nuanced than Mason suggests because blanket policies, paradoxically, only encourage lawyers to go rogue.
But more important than the “AI policy” is the part where “Three other Goldberg Segalla attorneys then reviewed the draft motion — including Mason, who served as the final reviewer.” Don’t blame the AI for the fact that you read a brief and never bothered to print out the cases. Who does that? Long before AI, we all understood that you needed to look at the case itself to make sure no one missed the literal red flag on top. It might’ve ended up in there because of AI, but three lawyers and presumably a para or two had this brief and no one built a binder of the cases cited? What if the court wanted oral argument? No one is excusing the decision to ask ChatGPT to resolve your $24 million case, but the blame goes far deeper.
Malaty will shoulder most of the blame as the link in the workflow who should’ve known better. That said, her article about AI ethics, written last year, doesn’t actually address the hallucination problem. While risks of job displacement and algorithms reinforcing implicit bias are important, it is a little odd to write a whole piece on the ethics of legal AI without even breathing on hallucinations.
Meanwhile, “CHA continues to contest the ruling and is seeking a verdict in its favor, a new trial on liability or a new trial on damages or to lower the verdict.” Maybe Claude can give them an out.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.