The Volokh Conspiracy
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Florida Politician (Anthony F. Sabatini) Faulted for AI Hallucinations in Briefs
"It is rare to see the kind of blatant and repeated misconduct that Sabatini [acting as plaintifs' lawyer] has committed in this case."
From Akerlund v. Atlas Air, Inc., decided yesterday by the Eleventh Circuit, Judge Britt Grant, joined by Judge Robin Rosenbaum and Embry Kidd:
A group of plaintiffs, employees in the commercial aviation business, personally reject their companies' pandemic-era policies on masks, testing, and vaccination. The district court dismissed the third amended complaint for lack of personal jurisdiction and failure to state a claim, and we affirm.
The claims in this case are remarkably weak, at least as pleaded. We are more candid than usual in this assessment because the plaintiffs' counsel Anthony F. Sabatini has not been candid with us. Sabatini filed multiple briefs replete with fake and hallucinated citations. Even after being warned. "Always a bad idea." Chief Justice John G. Roberts, Jr., 2023 Year-End Report on the Federal Judiciary, at 6 (2023). By outsourcing his legal work to an AI algorithm, Sabatini violated his ethical duties to both his clients and this Court….
Though the filings in this case were substandard in a variety of ways [I excerpt some of the substantive analysis below -EV], we have saved the worst for last. The plaintiffs' counsel Anthony F. Sabatini's filings are riddled with citations to nonexistent, "hallucinated" cases. His opening brief relies on at least eight such cases, including one purportedly decided by this Court.
After the defendants identified this problem, Sabatini acknowledged in his (untimely) proposed reply brief that those citations were "erroneous or unverifiable," and sought to withdraw his reliance on eight listed cases. At this point, things go from bad to worse: the eight cases Sabatini "withdrew" did not match a single one of the eight hallucinated cases in his opening brief. And not only were they not the right cases—all eight were also hallucinated.
We are far from the first court to see lawyers uncritically rely on artificial intelligence software and submit briefs citing nonexistent cases. The typical response when this kind of violation is identified is some version of an apology from the attorney, often with sanctions to follow. It is rare to see the kind of blatant and repeated misconduct that Sabatini has committed in this case.
The first rule of our profession is that a lawyer "shall provide competent representation to a client"—"competent" in the sense that it requires "legal knowledge, skill, thoroughness and preparation." It goes without saying that completely outsourcing one's legal work to artificial intelligence software is not competent. Doing so is a dramatic violation of the client's interests.
But it does not stop there, because lawyers are also officers of the Court. We expect that when lawyers submit briefs, they give us their best view of what the law is, and how that law supports their clients. We read those briefs carefully—not just because they are the product of counsel's time, effort, and skill, but because they help us as we try to reach the right answer. All that is lost if a lawyer decides that it is not worthwhile to do the work to persuade us—if he is willing to sign his name on whatever a machine churns out without so much as checking it for accuracy. We cannot do our job the same way unless lawyers do theirs.
Whatever the merits of artificial intelligence, it is no substitute for actual intelligence. Any "use of AI requires caution and humility." When lawyers rely on AI tools, there is no way to get around the obligation to verify that the software got it right, and that what it got wrong will not end up in court filings.
{AI algorithms are notorious for producing "outputs that echo users' opinions and beliefs, even when those views are incorrect." This tendency presents a particular danger in legal filings, as one of a lawyer's chief duties is to give his clients a clear-eyed view of whether the law says what the client wants it to say.}
By signing his name on briefs filled with hallucinated citations—not once but twice—Sabatini violated his professional obligations, both to his clients and to this Court. If he thinks these claims are not worth the effort, he should either tell his clients they fall short or advise them to hire another lawyer—not file obviously insufficient pleadings and briefs generated by AI tools. In a separate order, this Court, through the Chief Judge, will refer the matter to the Committee on Lawyer Qualifications and Conduct.
Orlando Sentinel (Annie Martin) reports that Sabatini is an elected County Commissioner for Lake County, Florida, and a former state representative:
The 37-year-old has made headlines for years for his controversial and often insulting social media posts and was warned by Republican leaders in Tallahassee to tone down his remarks even before he even attended his first legislative session in 2019.
In the past, he has tweeted a picture of an AR-15 targeted at George Floyd protesters, called for ending gay marriage and, when he ran unsuccessfully for the U.S. House of Representatives four years ago, posted on X, "I'm running for Congress to imprison as many Democrats as possible."
And a few excerpts related to the substance:
Atlas Air is a commercial airline, and Flight Services International hires contractors to staff Atlas Air's flights. During the Covid-19 pandemic, both companies required employees to vaccinate against Covid-19, unless they obtained a religious or medical exemption—in which case, they had to undergo periodic testing and wear a mask on the job.
The plaintiffs say they object on religious grounds to what they perceive as "a dangerous social and medical experiment." They explain that, among other things, their "conscience prohibits them from being inoculated with any experimental foreign substance," and that their religious rights were violated as a result of "the Biden Administration's goal of achieving universal vaccination and to unlawfully acquire [their] personal, genetic information." And in their view, the companies' accommodations for religious objectors to the vaccination requirement were unreasonable: monthly testing imposed "substantial burdens," and masks were "functionally useless" "symbols" that accomplished "nothing more than political advertising." Some plaintiffs say that they "succumbed to the pressure" and took the vaccine; others begrudgingly wore masks and tested. The complaint does not allege that anyone lost their job, but does allege that some plaintiffs were assigned to less desirable, lower-paying flights.
The plaintiffs assert that their employers' Covid-19 protocols led to a hostile work environment under Title VII; a Federal Food, Drug, and Cosmetic Act violation; a federal constitutional deprivation; a tortious invasion of privacy; a negligent disclosure of private medical information; and an infliction of emotional distress. The district court dismissed all claims against Flight Services International and some claims against Atlas Air for lack of personal jurisdiction, and the remaining claims against Atlas Air for failure to state a claim….
Exercising personal jurisdiction over Flight Services International in this lawsuit would violate due process because neither general nor specific jurisdiction is available in Florida for this company….
The plaintiffs first allege that Atlas Air created a work environment hostile to their religious beliefs, in violation of Title VII. They say that Atlas Air's "repeated attempts to coerce" them into getting vaccinated constituted "unwelcomed harassment."
To prevail on this claim, "the plaintiff is required to prove that the defendant had a discriminatory intent or motive." But the plaintiffs do not allege any facts indicating that Atlas Air intended to discriminate against their religious beliefs. In fact, the allegations suggest the opposite. Under its policy, Atlas Air exempted from its vaccine requirement employees who professed a sincere religious objection to the Covid-19 vaccine. Instead, they had to wear a mask at work and test once a month.
The plaintiffs now seem to assert that these accommodations are also hostile to their religion. The problem with this argument is that there is nothing to back it up in the pleadings. The plaintiffs do not allege any religious objections to masks or tests—only political and logistical ones. Masks, they say, are "functionally useless" "political symbols" that "serve no other purpose than identifying 'dissident' employees." And the plaintiffs offer no real problem with testing, other than a generalized complaint that it entails "substantial burdens." What those burdens are, and whether they are religious in nature, the plaintiffs do not say. Nor do they allege that employees who received religious exemptions were treated any worse than those who received medical exemptions.
Whatever one makes of the plaintiffs' dislike of masks and tests, they have alleged no facts signaling animosity from Atlas Air toward their religious beliefs. The allegation that Atlas Air harbored a discriminatory motive is not only conclusory, but "wildly implausible." …
The plaintiffs also bring claims under the Federal Food, Drug, and Cosmetic Act, alleging that Atlas Air unlawfully required its employees to take medical products authorized for emergency use. But they cannot sue to enforce such claims; only the federal government can bring enforcement actions under that statute….
The plaintiffs also allege several state tort claims. The first is that Atlas Air tortiously invaded their privacy by disclosing private medical information—namely, vaccination status—to company administrators in charge of enforcing Covid-19 protocols. "In Florida, except in cases of physical invasion, the tort of invasion of privacy must be accompanied by publication to the public in general or to a large number of persons." And publicity "requires that a matter be made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." The plaintiffs do not allege sufficient facts on this score….
We also reject the plaintiffs' intentional infliction of emotional distress claims. Those would require showing that Atlas Air intentionally or recklessly caused "severe emotional distress" through "extreme and outrageous conduct." The challenged conduct must "go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."
Like many other employers at the time, Atlas Air required certain precautions designed to prevent the spread of Covid-19. But the fact that the plaintiffs disagree with the steps Atlas Air took does not put the airline's actions beyond all possible bounds of decency. The district court correctly dismissed the plaintiffs' intentional infliction of emotional distress claims.