Hallucinations: “Well, here’s another nice mess you’ve gotten me into!” 

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Oliver Hardy, of Laurel and Hardy fame, said: “Well, here’s another nice mess you’ve gotten me into!”  That’s what happened with the citation of three non-existent cases in a motion for early termination of supervised release that was filed in U.S. v. Cohen, 2023 WL 8635521 (S.D.N.Y. Dec. 12, 2023).

In a circular firing squad, the client, Mr. Michael Cohen, said that he found the citations using Google Bard.  He provided the cites to his attorney and said that he relied on his attorney to “vet the information.”  The attorney did not do so, erroneously believing that the cases had come from another attorney, who later entered an appearance.  The subsequent attorney made it clear that she had nothing to do with the citations.

The situation is reminiscent of an old ESI sanctions case: “The conduct of both counsel and client thus calls to mind the now-famous words of the prison captain in Cool Hand Luke: ‘What we’ve got here is a failure to communicate.’ … As a result, sanctions are warranted.”  Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 424 (S.D.N.Y. 2004).

Bloomberg Law reported that Mr. Cohen’s attorney cited three cases and: “One of the citations—supposedly to a Second Circuit case—refers to a Fourth Circuit decision that has nothing to do with supervised release.  Another citation corresponds to a decision of the Board of Veterans Appeals.  The third cite, meanwhile, ‘appears to correspond to nothing at all,’ [Judge] Furman said in a Dec. 12 order to show cause.”  Holly Barker, Cohen’s Lawyer Says Privilege at Issue in Fake Citation Response (bloomberglaw.com)(Dec. 18, 2023).

The court wrote that movant’s attorney cited three cases and: “As far as the Court can tell, none of these cases exist.”  2023 WL 8635521, *1 (emphasis added).

The Bloomberg article states that:

Michael Cohen‘s lawyer has hired his own counsel to handle his response to a Dec. 12 order to demonstrate why he shouldn’t be held in contempt for filing a motion with citations to three court cases that a federal district court said didn’t exist.

Counsel for Cohen’s lawyer, David M. Schwartz of Gerstman Schwartz LLP, filed a response to the US District Court for the Southern District of New York’s order to show cause, saying that Schwartz’s response may require disclosure of attorney-client privileged communications under the New York Rules of Professional Conduct.

That issue appears to have evaporated based on the Mr. Cohen’s declaration which stated:  “Michael Cohen unwittingly sent his then-attorney non-existent case citations generated by artificial intelligence, he said in a court document unsealed Friday.”  Nicki Brown, Michael Cohen says he unwittingly sent attorney non-existent case citations generated by AI (msn.com)(Dec. 29, 2023).  The article continues:

In a signed declaration, Cohen said the citations and descriptions he sent to Schwartz came from Google Bard, an AI chatbot tool that directly competes with ChatGPT.

“As a non-lawyer, I have not kept up with emerging trends (and related risks) in legal technology and did not realize that Google Bard was a generative text service that, like Chat-GPT, could show citations and descriptions that looked real but actually were not,” Cohen said in his declaration.

Mr. Cohen then strategically placed his attorney under the metaphorical bus:

Cohen assumed Schwartz would vet the information before adding it into legal filings, he said in the declaration. [emphasis added].

That triggered a circular firing squad, with the attorney responding:

In a declaration signed December 15, Schwartz said he did not “independently review” the cases Cohen sent because he believed they were found by his current attorney, Danya Perry.

“If I had believed that Mr. Cohen had found these cases, I would have researched them,” Schwartz said in the declaration. “It was my belief, however, that Mr. Cohen had sent me cases found by Ms. Perry.”

Completing the circle, Ms. Perry and Mr. Cohen made clear that Ms. Perry had not been involved.  The CNN article states that:

Cohen said in his declaration that Perry did not have any involvement with the citations at issue.

In a letter to [Judge] Furman, Perry wrote that she only provided “very cursory notes” on an earlier draft of the motion in question, weeks before the citations were added.

“[W]hen Mr. Cohen passed my notes to Mr. Schwartz, he specified that the notes came from me […] conversely, when Mr. Cohen later sent Mr. Schwartz the case citations, he made no mention of me—for the simple fact that I had nothing to do with them,” she wrote.

In a pure heart, empty head argument: “Perry said Cohen didn’t mean to include fake cases, but rather thought Google Bard was a ‘super-charged search engine’ rather than a ChatGPT-like AI tool, and ‘did not appreciate its unreliability as a tool for legal research.’” Alison Durkee, Ex-Trump ‘Fixer’ Michael Cohen Admits He Accidentally Used Google Bard To Put Fake Cases Into Legal Filing (msn.com)(Dec. 29, 2023).  Ms. Durkee’s article continued:

“Mr. Cohen is not a practicing attorney and has no concept of the risks of using AI services for legal research—nor does he have an ethical obligation to verify the accuracy of his research,” Perry argued to the court.

Whatever the merits of the motion for early termination of supervised release may or may not be – – I have not read it and have no opinion – – it is unfortunate to have a preventable distraction such as this on such a matter.

“Never assume, always ask.”[1]  Counsel filed a motion assuming that the cites did not come from the client and instead assuming that they came from another attorney.  That assumption, combined with a failure to communicate, led to a possible disaster.

The court makes it clear that: “New counsel entered a notice of appearance on Mr. Cohen’s behalf after the Government opposed his motion and, with the Court’s leave, filed a reply letter.”  Ms. Perry’s appearance was entered on December 6, 2023. ECF No. 91.  That was long after the November 29, 2023, filing of the motion containing the non-existent cases.  The court makes it clear that Ms. Perry wrote: “While several cases were cited in the initial Motion filed by different counsel, undersigned counsel was not engaged at that time and must inform the Court that it has been unable to verify those citations.” (emphasis added).

This blog was initially posted on  Electronic Discovery Reference Model.

UPDATE: Jan. 4, 2024 —

Associated Press, Ex-Trump lawyer Michael Cohen says he unwittingly sent AI-generated fake legal cases to his attorney – Maryland Daily Record (thedailyrecord.com)(Jan. 2, 2024)(“Perry, who discovered that the cited cases were bogus after seeing the court filing, said Schwartz’s claim that he came to ‘believe’ that the citations came from Perry were ‘incorrect and I believe, far-fetched, as I had no involvement in any back-and-forth — not directly with Mr. Schwartz or his paralegal and not even indirectly through Mr. Cohen.’… When she learned of them, Perry reported the false case citations to the judge and federal prosecutors.”).

D. Thomas, Michael Cohen’s lawyer asks court to spare sanctions over made-up cases | Reuters (Jan. 3, 2024):

Schwartz and Perry “were using Cohen as a conduit to funnel papers back and forth,” Schwartz’s lawyers said in Wednesday’s filing. “As it turns out, this was not a good idea in that certain issues fell through the cracks, most notably the source of the case citations.”

Perry, in her own letter filed last week, claimed Schwartz had no reason to believe that she and not Cohen had been the source of the cases. She said Schwartz “appears to have a history in this matter of inattentiveness to detail.”

Schwartz in Wednesday’s filing said he would “not respond in-kind to the various personal comments she has made about me.”


[1] Anjali Mani, Never Assume, Always Ask: Preventing assumptions in our day-to-day life | The Mindful Word (Nov. 23, 2015).