The Footnote That Does Not Exist
A partner in a 12-lawyer litigation firm signed and filed a summary-judgment brief in an employment-discrimination case. The brief quotes a 2019 Seventh Circuit decision, 'Alvarez v. Midtown Logistics,' for the proposition that stray remarks never create a triable issue. Two weeks later, opposing counsel-a law-school friend of the partner-calls to say the case does not exist. The partner searches and cannot find it. The associate who drafted the brief admits using an AI research tool that 'hallucinated' the citation; the brief also misstates the holding of a real case and omits a controlling adverse case the associate found but did not disclose. The associate says, 'It's just a footnote, and you reviewed it.' The summary-judgment hearing is in 10 days. The client has not been told, and the court has not ruled. The partner is the supervising attorney of record.
1. What are the partner's obligations to the tribunal and to the client?
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The partner must correct the record promptly. Rule 3.3(a)(1) prohibits a lawyer from making a false statement of law or fact to a tribunal, and Rule 3.3(a)(2) requires disclosure of directly adverse controlling legal authority known to the lawyer that opposing counsel has not disclosed. The nonexistent citation and the misstated holding violate both. Rule 3.3(b) imposes a duty to take reasonable remedial measures, including disclosure to the tribunal if necessary, that continues until the proceeding is concluded. The partner cannot wait for the hearing or hope opposing counsel will raise it. The partner should notify the client immediately under Rule 1.4, explain the error, and tell the client that correction is required even if it harms the client's position. Withdrawal would not cure the false filing, and the partner cannot rely on the associate's draft or on having 'reviewed' it as a defense. The partner should file a correction, withdraw or correct the offending footnote, disclose the adverse case, and be prepared to explain the circumstances candidly to the court.
2. What supervisory and disciplinary consequences should the partner consider for the associate?
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The partner has supervisory duties under Rule 5.1 and must ensure the firm has reasonable measures to prevent similar errors, including reviewing AI-generated research, requiring citation checks against primary sources, and training on the limits of research tools. The associate's conduct-fabricating a citation, misstating a case, and omitting adverse authority-is a clear violation of Rules 3.3 and 8.4(c). Under Rule 8.3(a), a lawyer who knows of a clear violation raising a substantial question as to honesty, trustworthiness, or fitness must inform the appropriate professional authority, unless the information is protected by Rule 1.6 or the jurisdiction's version provides otherwise. The partner should consult ethics counsel promptly; internal remediation does not necessarily satisfy the reporting duty. The partner should not promise silence in exchange for the associate's cooperation, and should not shift all blame to the associate. Depending on the jurisdiction and facts, the partner may also need to notify the malpractice carrier and review other briefs the associate handled.
3. May the partner withdraw from the representation to avoid correcting the record? What if the client directs the partner not to disclose?
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No. The duty of candor under Rule 3.3 cannot be overridden by a client's instruction to stay silent, and withdrawal is not a substitute for correcting a false statement already made. Rule 1.6 permits disclosure of confidential information to the extent reasonably necessary to comply with Rule 3.3, and Rule 3.3(c) makes clear that the duty continues even if compliance requires disclosure of information otherwise protected. If the client directs the partner not to correct the record, the partner must explain that the correction will occur and that the client's instruction cannot be followed; if the client persists, the partner may seek to withdraw under Rule 1.16(a)(1), but only with the tribunal's permission and without delaying the correction. The lawyer should correct the record first or promptly, then address withdrawal. The partner should not disclose more client confidences than necessary. The court should receive a straightforward correction, not a vague 'clarification' that leaves the false impression intact.