Fifth Circuit Won’t Adopt AI Rule After Attorney Pushback

The US Court of Appeals for the Fifth Circuit said it won’t adopt a rule about lawyers’ use of artificial intelligence “at this time,” after many attorneys said that current regulations already guard against false information that could be generated by the emerging tools.

In a notice posted to the court’s website Monday, the circuit said that parties and their lawyers “are responsible for ensuring that their filings with the court, including briefs, shall be carefully checked for truthfulness and accuracy as the rules already require.”

“‘I used AI’ will not be an excuse for an otherwise sanctionable offense,” the circuit notice reads.

The Fifth Circuit last year said it was considering changing its certificate of compliance to require attorneys to say they checked the accuracy of any AI-generative material filed with the court.

But attorneys appeared largely resistant to the rule change in public comments, with some saying it was unnecessary because lawyers are already required to review materials for accuracy before filing them with the court.

If the rule had been adopted, the Fifth Circuit would’ve been the first US appeals court to create a special rule on AI.

Some US district judges, including a few within the Fifth Circuit’s jurisdiction, have issued their own rules about lawyers using AI in their courts. US District Judge Brantley Starr in the Northern District of Texas appeared to be the first to issue such an order last year, warning that the platforms are currently “prone to hallucinations and bias.”

At an April panel, Starr said he’d be willing to roll back his standing order if the flaws of AI are more generally known.

“But I do think there will be a point in time in which maybe my certification isn’t needed,” the judge said at the time. “Maybe if we all generally know about AI and bias and hallucination, and know what we should use it for and what we shouldn’t, then I’ll peel my certification back.”