CBA Record January-February 2026

AI 2035

A Proposed Technology-Neutral Rule By Justice Michael B. Hyman HOW DO WE SOLVE A PROBLEM LIKE HALLUCINATION?

M iscites, misquotes, misinterpretations, and exaggera tions are occupational hazards as old as the adversarial system. Now, these familiar slip-ups take a modern form with generative AI (GAI). Despite GAI’s ethical risks, professional obligations like dili gence, competence, and candor remain unchanged. See ABA Formal Ethics Op. 512 (2024). These duties apply equally whether a lawyer relies on books, commercial databases, or GAI capable of producing text faster than a court reporter can say, “Could you repeat that?” What was once seen as sloppy drafting or optimistic inter pretation has evolved into GAI-manufactured hallucinations, complete with fabricated case names, docket numbers, facts, and legal citations. Almost overnight, courts are confronting a prob lem born of faith in algorithms that have no shame. When used prudently, GAI can provide rapid research and drafting assistance. The challenge is how courts should respond when hallucinations or misattributions appear. As incidents escalate, judges across the country, including in Illinois, have expressed unease and impatience, justifying sanction hearings and potentially harming clients. Lawyers who submit unverified work risk losing arguments, waiving issues, reputational damage, and disciplinary exposure. Opposing counsel face added costs and delays. And self-represented litigants who use GAI share the same fate as lawyers.

Judges’ reactions are understandable, even commendable, but some have drifted beyond the principles that guide sanction deci sions: proportionality, access to justice, and reserving the harshest measures for the most egregious misconduct. Old Missteps, Updated Long before GAI, Illinois courts sanctioned negligent conduct, such as missed discovery deadlines. Their decisions emphasized that Rule 137 sanctions are circumstance-specific. Smith v. City of Chicago, 299 Ill. App. 3d 1048, 1052 (1998). In addition, as penalties, sanctions must “be just and proportionate to the offense” ( Nehring v. First National Bank in DeKalb, 143 Ill. App. 3d 791, 803 (1986)) and strictly construed, reserving “sanctions for the most egregious cases” ( Webber v. Wight Co., 368 Ill. App. 3d 1007, 1032 (2006)).

The challenge is how courts should respond when hallucinations or misattributions appear.

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