Lawyers Are Fined For Fake AI Cites But Not Judges?
Attorneys who use artificial intelligence are fined by federal judges, but not federal judges who misuse AI. Still more evidence that the U.S. judiciary is unchecked and unaccountable.
Two federal judges in recent weeks levied monetary fines and other sanctions against attorneys who used artificial intelligence in legal briefs, citing fabricated cases or ancient case law that was long ago dismissed.
But nothing happened when two U.S. District Court judges allegedly did the same thing, the latest example of the shocking lack of oversight over our self-policing federal judiciary.
U.S. Sen. Chuck Grassley (R-Iowa), chair of the Senate Judiciary Committee, wrote letters last week to U.S. District Judge Henry T. Wingate of the Southern District of Mississippi and U.S. District Judge Julien Xavier Neals of New Jersey regarding court orders they issued that contained serious factual inaccuracies, prompting allegations of AI use.
Higher Standard
“No less than the attorneys who appear before them, judges must be held to the highest standards of integrity, candor, and factual accuracy. Indeed, Article III judges should be held to a higher standard,” wrote Grassley.
There is no indication that Grassley will actually do anything if the judges are found to have transgressed, but it is arguably progress that Grassley noticed the incidents. Technically, the Senate Judiciary Committee has legislative jurisdiction over federal courts and federal judges though, in reality, it rarely exercises that jurisdiction.
According to Grassley:
Wingate in July issued a temporary restraining order pausing a state law that prohibits diversity, equity, and inclusion programs in public schools. The opinion named parties who weren’t parties in the case, misquoted state law, made factually inaccurate statements that were unsupported by the record, etc. Wingate replaced the flawed order with a backdated “corrected” version and declined to explain the errors, claiming they were clerical.
Neals, also in July, withdrew a decision in a biopharma securities case after defense counsel complained that he attributed inaccurate quotes to defendants, relied on quotes attributed to decisions that didn’t contain such quotes, and
misstated the outcomes of cited cases. Reuters reported that “a person familiar with the matter” said Neals office used AI.
“Substantive errors, like those found in the decisions of Wingate and Neals, cast doubt on the Judiciary’s deliberative process and raise legitimate concerns about the accuracy of courts’ decisions,” writes Grassley.
No Independent Review Of Complaints
The fact is that federal judges are virtually unaccountable to the public, even for egregious and systemic misconduct.
The federal court system is split into twelve independent circuits, plus the District of Columbia. Each circuit is governed by a chief circuit judge who routinely dismisses judicial misconduct complaints lodged in their circuit. Oftentimes, the chief judge has a conflict of interest, such as a friendship with the offending judge, or a self-interest (e.g., s/he failed to notice or curb the misconduct).
When an infraction is too blatant to sweep under the rug, the offending judge is allowed to retire, which immediately renders the court without jurisdiction to investigate or discipline the judge. Meanwhile, trust in the U.S. judicial system has plummeted by 24% since 2020.
Arguably the most serious judicial lapse in recent years occurred in Texas due to a disclosure by a disgruntled litigant.
U.S. Bankruptcy Judge David R. Jones approved $1 million in fees submitted by his lawyer girlfriend, who worked at a major Houston bankruptcy firm. Four fellow judges tried to cover it up. Jones was allowed to retire in 2023 with his pension and alleged ill-gotten gains. None of the Texas judges who participated in the cover up was disciplined.
In an unusual case last year, the Judicial Council of the Ninth Circuit Court, composed entirely of judges nominated by Democratic presidents, effectively forced the resignation of Joshua M. Kindred, a federal judge in Alaska who was nominated by GOP Donald J. Trump. Kindred was accused of engaging in an inappropriate sexual relationship with a law clerk. (Would this have happened to Kindred if he had been a Democratic nominee? We’ll never know.)
Sanctions are almost unheard of for the approximately 1,700 federal judges in the U.S., including the nine members of the U.S. Supreme Court, the 670 district court judges, 179 circuit judges, and the 517 full-time and 42 part-time magistrate judges.
The sanctions levied against two lawyers last summer both involved non-existent legal citations generated by AI.
Alabama attorney James A. Johnson was fined $3,000 by U.S. District Judge Terry F. Moorer, who said, “This is more than mere negligence or simple recklessness.” Moorer accused Johnson of causing “a significant waste of time for the United States and the Court.”
California attorney Edward A. Quesada was fined $1,500 for fake citations.
Invented Facts? No Problem!
I have followed legal developments on judicial misconduct since then-Chief U.S. District Judge Miranda Du of Nevada invented a “critical” fact to dismiss a lawsuit that I filed when a federal agency engaged in obvious age discrimination in the posting of job openings in the immediate aftermath of the 2008 recession.
Du had earlier dismissed the case on an agency motion for summary judgment, but it was revived by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco, which found the complained of age discrimination to be “common sense.”
My appeal of Du’s second dismissal via summary judgment - without a hearing - was upheld (also without a hearing) by a different three- judge panel in Pasadena, CA. Incredibly, the panel, in an unsigned opinion, relied upon Du’s invented “critical” fact.
I filed judicial misconduct complaints against Du and the three appellate judges. They were all dismissed in 2024 for utterly specious reasons by Chief Circuit Judge Mary H. Murgia and the Ninth Circuit Judicial Council - also without a hearing. (Du was a member of the Ninth Circuit Judicial Council at the time.)
Du literally made up facts. She wasn’t duped by AI into citing non-existent case law, like the lawyers who were fined. Her intent was to dismiss the case. Since there were no grounds for dismissal, she made up critical facts. Yet, the Ninth Circuit held that Du had done nothing unethical or worthy of sanction.
The three members of the Pasadena appellate panel issued a four-page decision with virtually no legal analysis. Their ruling was premised on Du’s invented “critical” fact. The panel included Lawrence Van Dyke (who was rated “not qualified” to be a judge by the ABA Standing Committee on Judicial Nominees), Ryan D. Nelson and Gabriel P. Sanchez. Van Dyke and Nelson were nominated by Trump during his first term, while Sanchez was appointed by Pres. Biden in 2022.
May I suggest to the judiciary committee that this is worth a passing glance?