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Fifth Circuit’s Stance On Attorney AI Use

by | Jun 18, 2024 | Federal Law Update |

The legal community has been abuzz with discussions about the integration of artificial intelligence (AI) into various facets of legal practice. Our employment discrimination lawyers have been following these developments closely.

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Recently, the United States Court of Appeals for the Fifth Circuit weighed in on this matter, providing a clear and significant ruling: the use of AI in drafting legal briefs is acceptable. However, attorneys must remain vigilant and adhere to existing standards of accuracy and truthfulness in their filings.

In a notable announcement, the Fifth Circuit stated that it would not be adopting a special rule specifically addressing the use of AI in legal briefs at this time. This decision came after extensive consideration of the proposed rule, numerous comments from the legal community, and the current capabilities and limitations of AI in legal practice.

The court emphasized that the existing Federal Rule of Appellate Procedure 6(b)(1)(B) already requires attorneys to ensure that their filings are accurate and truthful. According to this rule, every brief submitted must include a certificate of compliance, ensuring that the document meets the word count or line count limits set by the court. More importantly, it implicitly requires attorneys to certify the accuracy and truthfulness of the contents within those filings. The key takeaway from the court’s announcement is the explicit reminder that “I used AI” will not serve as a valid excuse for any inaccuracies or falsehoods in court submissions. In other words, while AI can be a valuable tool, it does not absolve attorneys of their professional responsibilities.

The Fifth Circuit’s decision reflects a broader sentiment within the legal community. Many attorneys expressed resistance to a rule change, arguing that current regulations sufficiently cover the need for accuracy and truthfulness in legal filings. The court’s stance acknowledges this perspective, affirming that while AI-generated content can be utilized, the ultimate responsibility for the content’s integrity lies with the attorney.

This decision places the Fifth Circuit as a forward-thinking body, recognizing the potential of AI in enhancing legal practice without compromising the established standards of the profession. It avoids the pitfalls of over-regulation while maintaining a firm stance on the accountability of legal practitioners.

The context of this ruling is important to understand. Last year, the Fifth Circuit considered requiring attorneys to certify the accuracy of any AI-generated material in their court filings. However, public comments from the legal community largely opposed this change, viewing it as redundant given the existing rules mandating thorough review and accuracy of all submitted documents.

Interestingly, some district judges within the Fifth Circuit’s jurisdiction have already issued their own directives regarding AI use. For instance, US District Judge Brantley Starr of the Northern District of Texas was among the first to mandate that attorneys certify the accuracy of AI-generated content. He cited concerns about the current tendency of AI tools to produce “hallucinations and bias.”

Judge Starr, in a recent panel discussion, acknowledged that his standing order might be rolled back once the legal community becomes more familiar with AI’s strengths and limitations. His comments reflect an evolving understanding of AI’s role in legal practice: as the technology matures and its quirks become well-known, additional certifications may become unnecessary.

For legal professionals, the message from the Fifth Circuit is clear: embrace AI as a tool, but do not shirk your responsibilities. The integration of AI can streamline many aspects of legal work, from research to drafting documents. However, the onus remains on attorneys to ensure that every filing is accurate and truthful. This really is no different than using a law clerk or new attorney to do initial research and draft of a brief. “Trust but verify,” as President Ronald Reagan was fond of saying. A lawyer signing their name to bad brief that misrepresents the law will have the same consequences regardless of whether it was written by a law clerk or a robot. Just like a Court would reject any attempt by a lawyer to blame a law clerk, the same will hold true for AI.  The signing attorney is verifying the work submitted to the Court and the failure to check the work is done at grave risk.

In conclusion, the Fifth Circuit’s decision not to implement a special rule on AI use underscores a balanced approach. It acknowledges the utility of AI in modern legal practice while upholding the fundamental principles of accuracy and accountability as outlined in the Federal Rule of Appellate Procedure 6(b)(1)(B). As AI technology continues to evolve, so too will its role in the legal field. Attorneys must stay informed, vigilant, and prepared to leverage these tools responsibly.

At Spitz, The Employee’s Law Firm, we are committed to staying at the forefront of technological advancements, including the use of AI in legal practice. By integrating cutting-edge tools and resources, we ensure our clients receive the best possible representation and advantages in their cases. This dedication to innovation is crucial in a rapidly evolving legal landscape, allowing us to provide thorough, accurate, and effective advocacy. Our commitment to utilizing the latest technology reflects our broader mission: to uphold the rights of employees with the highest standards of excellence and diligence.

About the Author: Brian Spitz is the founding and managing partner of Spitz, The Employee’s Law Firm, which focuses exclusively on employee rights. With over 40 trials to his credit and numerous million-dollar awards for his clients, Brian’s dedication to employee rights has helped build one of the largest firms in the U.S. dedicated to this area of law.


The content of this blog is intended for informational purposes only and does not constitute legal advice. The information provided herein is not a substitute for professional legal counsel and should not be relied upon as such. No attorney-client relationship is formed by reading or interacting with this blog. The views expressed are those of the author and do not necessarily reflect the views of Spitz, The Employee’s Law Firm, or any of its attorneys. Legal outcomes may vary based on individual circumstances, and readers should consult with a qualified attorney regarding their specific legal issues. Spitz, The Employee’s Law Firm, assumes no responsibility for any errors or omissions in the content of this blog or for any actions taken based on the information provided herein.

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