CBA Record May-June 2026

Alarms Continue Unabated T he duty to verify authorities, citations, and quotations in court filings isn’t new. What’s new is the speed at which unverified or materially inaccurate content can reach a filing, along with the increasing severity of consequences when it does. Indeed, the scrutiny is becoming sharper and the penal ties steeper. Although decided outside Illinois, two recent appellate deci sions have added dimensions that must be considered regard less of whether litigants use AI in preparing their filings ( see Noland v. Land of the Free, L.P., 114 Cal. App. 5th 426 (Cal. Ct. App. 2025); and Whiting v. City of Athens, Tenn., Nos. 24-5918/5919/25-5424 (6th Cir. Mar. 13, 2026)). The CBA Record covered Noland in a previous issue. That case looms large because it signals that not only is it an ethical obligation to avoid inaccurate content in your own filings, but spotting the same in opposing counsel’s filings is becoming part of the expected standard of professional competence as well. Absence of professional competence was on staggering dis play in the Whiting decision. In that case, the Sixth Circuit imposed punitive fines on two attorneys of $15,000 each, plus full appellate attorney fees and double costs, after cataloguing over two dozen fake or misrepresented citations across three consolidated appeals. The attorneys had refused to respond to an order to explain their cite-checking procedures or to even answer the court’s question of whether AI was used. The mis conduct included nonexistent cases, fabricated quotations, and real cases cited for propositions they did not support, including one cited for the opposite of its actual holding. Aggravating fac tors also applied: prior discipline for lack of candor and defi ance of the show cause order. The court chose the $15,000 figure in part because smaller fines in other cases have failed to deter similar misconduct. A crucial point is that the Sixth Circuit made no finding that AI generated the fabricated citations in Whiting ; it didn’t matter. Quoting Noland directly, the court held that no filing should contain any citation, from AI or any other source, that a lawyer has not personally read and verified. That cross-jurisdic tional citation—a federal appellate court quoting a California decision issued just a few months earlier—signals convergence on this principle. A Technology-Neutral Standard? And What About SRLs? Sanctions in Illinois are governed by Supreme Court Rule 137. They depend on the circumstances and are strictly construed. However, the rule’s application is uneven. Questions remain: Aren’t existing duties of competence and candor sufficient? Will By Anne Ellis MISREPRESENTATION In Court, AI and Otherwise

the Illinois Supreme Court’s AI Policy and the ARDC’s Guide to Implementing AI bring uniformity and proportionality to the problem of bad drafting? And where does that leave self-repre sented litigants (SRLs), who do not have access to proprietary legal databases for their research? A focus solely on AI does not reach filings that are glaringly bad but that were not generated by AI. A better framework might well be a technology-neutral rule that would cover proportional sanctions, verification obliga tions, a correctable defect mechanism for first-time violators, and protections for SRLs (as Justice Michael B. Hyman pro posed in his article, How Do We Solve a Problem Like Hallucina tion?, published in the Record’s first AI-themed issue this past January). This is vital for all parties in a lawsuit, but especially for nonlawyer litigants. Courts often treat them like lawyers, and that’s not realistic, especially when it comes to new technol ogy. Regardless of the solution adopted, the existing framework appears to need reinforcement. In the meantime, the bottom line remains the same, regardless of whether you use generative AI in research or drafting: Confirm every citation independently in a reliable legal database before filing. And if you spot suspect authority in an opponent’s brief, pull it and say something. The bench is watching, and the consequences are climbing.

Anne Ellis, Associate Editor of the CBA Record, is the founder of 2E Services LLC, a legal and business research and communications firm.

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