Lack of oversight may be why younger lawyers use fake AI citations
While an attorney’s duty to supervise a more junior lawyer or nonlawyers dates back several decades, artificial intelligence and remote work are creating new wrinkles involving the scope of that duty.
Under Rule 5.1 of the ABA Model Rules of Professional Conduct, a partner in a law firm and a lawyer who—individually or together with other lawyers—has managerial authority in a law firm must make “reasonable efforts” to ensure all lawyers in the firm conform to the Rules of Professional Conduct.
But what are reasonable efforts in the age of generative AI, which has seen lawyers being sanctioned for citing fictitious cases?
“Junior lawyers might be more likely to rely on AI, and the gap between the tech competence of lawyers can be an issue,” says Nicole Hyland, a Frankfurt Kurnit partner whose practice focuses primarily on legal ethics, professional responsibility and legal malpractice.
In the 2024 Massachusetts case Smith v. Farwell, a lawyer for the plaintiff filed legal memoranda that cited and relied on fictitious cases. Acknowledging his ignorance of AI and disclaiming any intention to mislead the court, the lawyer attributed the inclusion of the cases to an associate and two recent law school graduates who had not yet passed the bar who worked on the brief.
The judge credited the attorney’s contrition, but he said it did not exonerate him of all fault and ordered him to pay a $2,000 sanction.
Just as ignorance of the law is no excuse, a lack of technical knowledge does not justify any sort of failure to supervise, according to Lucian Pera, a partner with Adams and Reese.
“With AI, I’ve got to be trained to look at others’ work products and paralegals’ draft documents,” says Pera, whose practice focuses on an array of issues relating to legal ethics and the regulation of lawyers.
“I’m still amazed at the stories of lawyers submitting cases with fake AI citations,” he says.
Pera, who is based in Memphis, Tennessee, notes that in his early years of practice, he worked for a lawyer who would pull every case in the law library to check associates’ work.
“That sounds crazy, but it’s not crazy at all,” Pera says. “I don’t necessarily read and check every single case, but it’s my responsibility if I don’t.”
According to Leslie Levin, a University of Connecticut School of Law professor, the truth is that a lawyer generally can’t know just from looking at a brief whether AI has been used.
“You need to make sure a junior associate knows they can’t rely on generative AI to write a brief. It’s very important to communicate that,” she says.
Regardless of whether AI is involved, she calls it a “habit of mind” that a supervising attorney needs to stay on top of very junior lawyers. “You cannot assume that [junior people] know how to make the proper decisions,” Levin asserts.
And while some law firms have built their own AI libraries to help with writing briefs, lawyers are still responsible to make sure cases cited in the briefs are correct, Pera says.
Remote work
Another big issue with the duty to supervise involves the rise of remote work. While many law firms require attorneys to work in the office part or all of the time, remote work is “by no means dead,” says Pera, and it can raise challenges. “How do you supervise when you can’t walk down the hall and ask them questions?”
Levin echoes that point in noting that remote work can make it more difficult to mentor people and give feedback. “It’s a bit harder to have those passing conversations you have in the office as opposed to remotely with specified interactions,” she explains.
Hyland explains that when people are not in the same place at the same time, it adds layers to the supervision. “You also need good data security practices with people using their own devices,” she says.
“You can’t have someone working remotely without having confidence the systems they’re using are safe. That’s a real issue,” Pera adds.
The attorneys suggest that senior attorneys make sure they know what’s happening and that the junior attorneys are properly trained. According to Hyland, one way to achieve that might be by saying, “Oh, I see you have a hearing coming up. How’s that coming along?”
“At a certain level, you need to pay attention and can’t just delegate,” Levin says. “Some firms have a culture of encouragement, and others expect junior lawyers to just ‘figure it out themselves.’”
Client expectations
While delegating a case entirely to a junior attorney with limited or no supervision is hardly a best practice, the lawyers who spoke with the ABA Journal stress that alone would not give rise to one of a firm’s biggest fears—legal malpractice liability—whether AI and remote work are involved or not.
“A plaintiff in a legal malpractice case has to prove that but for the firm’s negligence, they would have won their case,” Hyland explains. “Just because a firm assigned a less-senior lawyer doesn’t mean negligence has occurred.”
Pera agrees and also notes that it is not solely the client’s right to determine who in the law firm does the work. He adds, though, that if a client and senior attorney specifically agreed that only the senior attorney would handle their case and then the attorney fails to do so, that could give rise to a breach-of-contract claim.
Often, though, he says there is a solution that can avoid that problem.
“Usually, it’s triggered by how much it’s going to cost,” Pera says. “Sometimes, I’ll tell a client up front that one approach we can have is, ‘Sally can handle the case, and her rate is one-third less than mine.’ That way, there is no confusion.”
This story was originally published in the June-July 2025 issue of the ABA Journal under the headline: “Cite Once, Check Twice: When courts discover fake AI citations, a lack of supervision is often the cause.”
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