In an unprecedented move for a federal circuit court, the 5th U.S. Circuit Court of Appeals is contemplating a rule change that mandates both lawyers and unrepresented parties to declare their usage of artificial intelligence while preparing documents for court proceedings.
If the proposed rule is accepted, lawyers and others involved in filing will need to certify that they either refrained from utilizing AI during the drafting of the document, or if AI technologies were employed, a human was responsible for checking the document’s accuracy.
Although approximately 14 federal trial courts have implemented AI-related rules, it seems that this is the first known case where such a rule is being assessed by a federal appeals court.
Federal courts were motivated to contemplate such rules after the notable case of Mata v. Avianca, in which two attorneys were penalized for filing a brief laced with false cases fabricated by an AI system.
The court has published the tentative change, encouraging public comments until January 4, 2024.
Specifically, the proposition is to update Rule 32.3 of the circuit, which currently demands attorneys to sign a certificate of compliance with the court’s filing regulations concerning typeface, page limits, and more. The new language states:
“Additionally, counsel and unrepresented filers must further certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human.”
If a misrepresentation about the usage of AI is discovered, the document could be rejected and the filer could potentially face sanctions.
The proposal also suggests revising Form 6 of the court – its certificate of compliance – adding checkboxes for the relevant AI certifications.
For the complete text of the rule change, new form, and instructions on how to file comments, follow this link.