Background
Barry Douglas, representing himself, appealed a Superior Court order granting Deutsche Bank National Trust Company judgment on the pleadings in a judicial-foreclosure action under D.C. Code § 42-816. After the appeal was submitted without oral argument, the District of Columbia Court of Appeals discovered that Deutsche Bank’s brief cited several cases the court could not locate or confirm.
In response to an order to show cause, attorney Loishirl W. Hall acknowledged that four cited cases did not exist. She explained that she had used Google’s generative-AI search tool to locate authority and had failed to verify the citations before filing. Her former firm, McCabe, Weisberg, & Conway, said it had been unaware of her actions and acknowledged that further review should have occurred, but did not explain what review or supervision the other attorneys listed on the brief had provided.
The Court’s Holding
The court struck Deutsche Bank’s brief for violating D.C. Appellate Rule 28. It reasoned that a fabricated citation is, at best, no citation at all and is worse because it misdirects the court, consumes judicial resources, and deprives both the client and the adversarial process of credible advocacy. The presence of some genuine authorities and sound propositions elsewhere in the brief did not cure the inclusion of fabricated cases.
The court emphasized that lawyers may use AI, but they remain personally responsible for verifying the accuracy and validity of every authority submitted to a court. It stated that every firm attorney whose name appeared on the brief bore some responsibility for the failure of review. The court also referred the matter to the Office of Disciplinary Counsel for any investigation it deemed appropriate and referred the scope of the court’s sanctions authority to its Rules Committee. The order did not decide the merits of Douglas’s foreclosure appeal or determine that any attorney violated a professional-conduct rule.
Senior Judge Glickman concurred, explaining that the court’s existing rules and inherent authority may not permit stronger direct sanctions absent bad faith, which the existing record did not establish. He also clarified that responsibility for checking a multi-attorney brief may be allocated through reasonable procedures and need not require every listed attorney to duplicate every citation check.
Key Takeaways
- A brief containing fabricated authority may be stricken even when it also includes legitimate citations and potentially sound legal arguments.
- Using generative AI does not alter counsel’s duties of competence, candor, supervision, and verification; even one unverified fake citation may justify sanctions.
- The court imposed no merits disposition and made no disciplinary finding, but it referred the matter to Disciplinary Counsel and asked its Rules Committee to examine the court’s sanctions authority.
Why It Matters
This is the District of Columbia Court of Appeals’ first reported case involving a brief with fabricated citations. The published order warns appellate lawyers and firms that AI-assisted research must be paired with independent review and that blaming an individual drafter will not necessarily shield other attorneys responsible for the filing.
The concurrence also identifies a potential gap in the court’s ability to punish negligent or grossly negligent AI-related misconduct directly. That issue could lead to amendments expanding or clarifying the sanctions available for defective appellate filings.