Federal Judge Proposes Rule 11 Amendment to Address Generative AI in Court Filings

On May 29, Judge Barksdale asked the U.S. Judiciary Committee to amend Federal Rule of Civil Procedure 11 to address the use of generative AI in court pleadings. In doing so, Judge Barksdale urged the U.S. Judiciary Committee to follow the precedent set by the Florida Supreme Court in creating uniform rules regarding generative AI use, certification, and disclosure across the Federal Court system.

Florida Supreme Court's Generative AI Certification Rule 

On May 28, one day prior to Judge Barksdale’s proposal, the Florida Supreme Court amended their Rules of General Practice and Judicial Administration. The amended Rule 2.515(d)(2) requires signers of documents filed with the Florida courts to represent that “the legal authorities identified exist and are accurately cited.” This amendment also authorizes courts to impose sanctions they deem appropriate for any filing that fails to meet those requirements. The amendments go into effect July 15.

The Florida Supreme Court’s amendments seek to “promote the accuracy and integrity of court filings” in light of the risks posed by the improper use of generative AI. These concerns focused on the use of fabricated and hallucinated authorities, which have garnered attention in the legal news.  

The rule preempts other standing orders concerning certification of AI use in the State of Florida.  

In the order announcing the amendments, the Florida Supreme Court stated that statewide consistency regarding generative AI disclosure and certification would address the concerns posed by differing requirements across the state. The uniform system is designed to “better balance the needs of the court system with the interest of the external users of that system” compared to a piecemeal approach of varying requirements by individual judges. 

Proposed Rule 11 Amendment: Certifying Legal Authorities Exist

The U.S. Judicial Conference has made public an email Judge Barksdale sent containing her proposed amendment to Rule 11 and has listed the suggestion as pending before the Judicial Conference’s advisory committee on civil rules.  

The current language of Federal Rules of Civil Procedure Rule 11 governs representations attorneys make to the Federal Courts in pleadings, motions, and other writings. Notably, under Rule 11, when an attorney presents a writing to the court, they must certify that, to the best of their knowledge, information and belief, the legal arguments contained within are “warranted by existing law or by a nonfrivolous argument for extending…existing law.” 

Judge Barksdale’s proposal would add an additional requirement to an attorney’s certification under Rule 11 — requiring that the attorney certify that “the legal authorities exist and are accurately cited.”  

Much like the Florida judicial rules it was modeled after, Judge Barksdale’s proposal is aimed at addressing the use of generative AI in court filings by filling the perceived gaps in Rule 11 that are being managed on a case-by-case basis by individual judicial orders.  

To illustrate this point, Judge Barksdale pointed to two judges within her district who have adopted standing orders regarding the use of generative AI in court filings in the past two months. Those standing orders by District Judge Wendy Berger and District Judge Anne Leigh Gaylord Moe supplement Rule 11’s certification requirements in a similar fashion as Judge Barksdale’s proposal. 

Compliance Steps for Attorneys Using Generative AI

Judge Barksdale’s request to the U.S. Judiciary Committee comes as the debate over the use of AI in litigation continues to grow. The use of undisclosed and unchecked generative AI in court filings remains an issue as is demonstrated by the near weekly article about another court filing laden with non-existent case citations or citations that do not stand for the stated proposition. Within the past few months, attorneys have been admonished for improper AI usage across the country.  

Amending Rule 11 may provide greater consistency to the Federal Court system’s handling of the use of generative AI tools in legal filings. As the courts adjust to the changing technological landscape, attorneys should continue to check their local court rules, judicial procedures, and standing orders to ensure they are complying with the appropriate rules in their jurisdiction. In addition, attorneys should also remember to comply with the mandates of Rule 11 as currently written and the Model Rules of Professional Conduct requiring accuracy and candor in representations made to the court.