This matter arose out of an emergency application for a stay in the nature of a preliminary injunction pending appeal. There was an expedited consideration of the appeal by the court. There was also a condensed briefing scheduled issued.
The attorney for the appellee filed an initial Brief. The appellant filed a Reply Brief in which it contended that AI may have been used by the appellee to prepare the initial Brief given that the appellee’s Brief was apparently filled with fake citations, quotes to cases that do not exist and to information in the record that did not exist, and material misrepresentations with respect the record, all of which were described as AI-created hallucinations.
A week later and just two (2) days before the appeal was scheduled to be argued before the court, another attorney for the appellee filed a Motion for Leave to File an Amended Brief. The proposed Amended Brief was noted to be significantly different from the initial Brief of the appellee in both form and substance.
The appellant filed an opposition to the request for permission by the appellee to file an Amended Brief.
The Commonwealth Court confirmed that the appellee’s initial Brief was replete with both factual and legal errors. The court held that granting leave of court for the appellee to file an Amended Brief was “not an option.” The court noted that it would be prejudicial to the appellant to allow the appellee to file what is essentially an entirely new appellate Brief just two (2) days before the argument was scheduled before the en banc appellate court.
The Commonwealth Court also agreed with the argument by the appellant that granting leave under these circumstances would set a poor precedent. As such, the Commonwealth Court denied the application and struck the “AI-ridden” initial Brief. The Commonwealth Court noted that “cannot condone the filing of any legal document that admittedly contained numerous factual legal errors.”
In so ruling, the court noted that the creation of a legal document by way of generative artificial intelligence, in and of itself, is not problematic. However, the court noted that what is problematic is when the document is filed with numerous factual and legal errors and obviously not reviewed and corrected prior to the filing of the document.
In its Opinion, the court referenced a Pennsylvania Federal Court decision addressing similar issues regarding AI hallucinations being found in an filed brief. The court also reviewed the Joint Formal Opinion 2024-200 issued by the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Philadelphia Bar Association Professional Guidance Committee which provided guidance on the use of AI for the creation of legal documents.
In its Opinion, the Commonwealth Court noted that it did not “determine or pass judgment on whether any ethical rules were violated” in this case. See Op. at 8. However, with its decision, the court wished “to bring attention to the gravity of the implications of the use of generative AI by attorneys.” See Op. at 8.
In the end, the court denied the application by the appellee to file an Amended Brief.
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