Blame All Around: Lawyers Bicker Over Who Is Responsible For Former Trump Fixer Michael Cohen Submitting AI Hallucinated Case Citations In Court

As most of you will readily recall, last summer there was quite a lot of attention paid to a case involving a lawyer who had submitted a brief in a personal injury case that had a whole bunch of made up case citations. After this was brought to the attention of the judge, the lawyer on the case admitted that (1) he hadn't actually done the work, but rather it was another lawyer at his firm who did all the work, and (2) that lawyer had stupidly relied on ChatGPT for his research and hadn't done the most basic thing to check whether or not the cases were real. This was dumb for oh so many reasons, including that you're supposed to check case citations against later rulings to make sure the cases you're citing were still valid.

That whole mess resulted in a $5k fine for the lawyers, as well as a lifetime of embarrassment.

But, on the plus side, hopefully the widespread news coverage of the story would get lawyers to never, ever do that again, right?

Ah, well, silly me. Of course it's happened again, and this time the culprit is former Trump fixer-turned-Trump accuser (and convicted criminal) lawyer Michael Cohen. There were some shenanigans in his situation over the last few weeks, in which he initially sought early termination of his probation.

Over the last few months, there has been a lot of back and forth on the docket over that motion, and in early December, Cohen switched his own lawyers, as lawyer Danya Perry took over from earlier lawyer David Schwartz. A few days later, Perry filed a letter in support of Cohen's motion for early termination, and noted in passing that the most recent motion (a week and a half earlier, filed by Schwartz) mentioned some cases that Perry was unable to locate. The following was put in a footnote connected to a paragraph naming a bunch of cases:

Such rulings rarely result in reported decisions. While several cases were cited in the initial Motion filed by different counsel, undersigned counsel was not engaged at that time and must inform the Court that it has been unable to verify those citations.

That footnote appeared to catch Judge Jesse Furman's attention, and he quickly issued an order to show cause (OSC) to explain all of this:

On November 29, 2023, David M. Schwartz, counsel of record for Defendant Michael Cohen, filed a motion for early termination of supervised release. See ECF No. 88. In the letter brief, Mr. Cohen asserts that, [a]s recently as 2022, there have been District Court decisions, affirmed by the Second Circuit Court, granting early termination of supervised release." Id. at 2. He then cites and describes three such examples": United States v. Figueroa-Florez, 64 F.4th 223 (2d Cir. 2022); United States v. Ortiz (No. 21-3391), 2022 WL 4424741 (2d Cir. Oct. 11, 2022); and United States v. Amato, 2022 WL 1669877 (2d Cir. May 10, 2022). Id. at 2-3.

As far as the Court can tell, none of these cases exist.1 64 F.4th 223 refers to a page in the middle of a Fourth Circuit decision that has nothing to do with supervised release. See United States v. Drake, 64 F.4th 220 (4th Cir. 2023). 2022 WL 1669877 corresponds to a decision of the Board of Veterans Appeals. See (Title Redacted by Agency), Bd. Vet. App. A22004268, 2022 WL 1669877 (Mar. 11, 2022). 2022 WL 4424741 appears to correspond to nothing at all. Moreover, the Court contacted the Clerk of the Court for the United States Court of Appeals for the Second Circuit, who found no record of any of the three decisions and reported that the one listed docket number (for Ortiz) is not a valid docket number.

In light of the foregoing, Mr. Schwartz shall, no later than December 19, 2023, provide copies of the three cited decisions to the Court. If he is unable to do so, Mr. Schwartz shall, by the same date, show cause in writing why he should not be sanctioned pursuant to (1) Rule 11(b)(2) & (c) of the Federal Rules of Civil Procedure, (2) 28 U.S.C. 1927, and (3) the inherent power of the Court for citing non-existent cases to the Court. See, e.g., Mata v. Avianca, Inc., No. 22-CV-1461 (PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023). Any such submission shall take the form of a sworn declaration and shall provide, among other things, a thorough explanation of how the motion came to cite cases that do not exist and what role, if any, Mr. Cohen played in drafting or reviewing the motion before it was filed.

There's so much craziness to come that I'll just breezily mention how insane it is that it was Cohen's own (new) lawyer, and then the judge, who started exploring this and not the DOJ, but... let's move on.

At this point, there was plenty of speculation that we had another ChatGPT lawyer situation on our hands, but I held off reporting on this until we got more details. And, as each new detail came out, things got dumber.

A few days later there was another order from Judge Furman (who, in the past, has shown that he has little patience for lawyers playing games), saying that Cohen's previous lawyer, David Schwartz, had not just lawyered up but had requested that his response to the OSC be sealed, noting that it might implicate attorney-client privilege:

On December 15, 2023, Schwartz - through counsel of his own - filed a response to the Court's Order to Show Cause accompanied by a letter-motion to seal his response. In the letter-motion, counsel opine that Schwartz's response to the Order to Show Cause implicates the confidentiality of the attorney-client privilege," but that, under the unique circumstances present here," the New York Rules of Professional Conduct permit - indeed, require - disclosure of those communications to the Court. The letter-motion requests that Schwartz's submission be maintained under seal until" the Court resolves whether Mr. Schwartz can reveal the information stated in his affirmation without violating the attorney-client privilege."

This resulted in even more speculation, as it certainly seemed to suggest that Cohen had sent him the made up case citations, and thus revealing the details of how he got them would disclose confidential attorney-client communications.

Judge Furman let Schwartz seal on a temporary basis." On December 28th, the sealed filing was made, and on the 29th Judge Furman said that Cohen had granted to unseal the response.

There are a few different things in the unsealed filings worth highlighting. First, there's a declaration from Cohen's former lawyer David Schwartz, in which hs basically throws Cohen's new lawyer, Danya Perry under the bus:

In preparing the current submission, on November 12, 2023, I sent Mr. Cohen a draft of my proposed letter to the Court. Notably, my original draft letter did not cite any cases. It was never my intention to cite any cases as I felt that the application was strong enough, based on all the facts and circumstances. The original draft letter sent to Mr. Cohen was dated May 30, 2023 (Exhibit B)

It was apparent and clear to me that E. Danya Perry, counsel for Mr. Cohen in prior proceedings1 , reviewed my original draft letter, dated May 30, 2023. Ms. Perry, a renowned and skilled trial lawyer, is the Founding Partner at Perry Law. She is a recognized white collar criminal defense attorney and commercial litigator who has represented various corporations and individuals in high-profile matters. Notably, she is a former Assistant United States Attorney in the Southern District and served as Deputy Chief of the Criminal Division.

On November 12, 2023, Michael Cohen sent me a redlined draft of the letter, ostensibly prepared by Ms. Perry. It contained comments and, specifically, a suggestion that you should have a few in-district court cases where judge granted early termination." The comments were labeled DP", which I believed were attributed to Danya Perry. (Exhibit C)

In Exhibit c" we see the suggestions:

Schwartz also says that Cohen says these edits were sent to me from Danya."

A few days later, after Schwartz made the changes Perry had suggested, but had not added any citations, he received emails from Cohen with citations:

On November 25, 2023, my office received three emails from Mr. Cohen with the three cases in question plus summaries of the cases. (Exhibit E) As Mr. Cohen had previously forwarded Ms. Perry's edits of the draft letter, and as Ms. Peny had suggested that case law be added to the letter, I believed that Mr. Cohen was now sending me cases that had been found by Ms. Perry. Prior to receiving these emails, Mr. Cohen communicated to me that cases would be provided by Ms. Perry.

Admittedly, because of Ms. Perry's reputation, I relied on her skills as an attorney and as someone who had been working with me in preparing this submission; as a result, I did not independently review the cases.

I failed to review what I thought was the research of another attorney.

I never contemplated that the cases cited were non-existent."

In the exhibits it shows the emails from Cohen, which are actually forward from what appears to be Michael Cohen's wife's email account. There are three emails, each with a different citations. Here is just the first one:

Schwartz then notes that after the OSC was issued, he reached out to Perry's law firm, telling them he thought Perry had found the citations, and was told that Cohen had found them via Google:

After I was served with the Show Cause Order on December 12, 2023, I spoke with Lilian M. Timmerman, a Partner at Perry Law. After I explained to her that I believed that her office had found" the cases in question, she told me that Mr. Cohen had admitted to them that he had found the cases on Google.

If I had believed that Mr. Cohen had found these cases, I would have researched them. It was my belief, however, that Mr. Cohen had sent me cases found by Ms. Perry.

Perry then filed a response, effectively saying well, wasn't this all a big misunderstanding, ha ha ha" while noting that Cohen had no responsibility to investigate the reality of the case citations he had found - but also throwing Schwartz under the bus himself, noting it really should have been his responsibility to check the cases:

Mr. Schwartz's recollection of the events is largely consistent with Mr. Cohen's. While this response provides a few clarifications, we believe the Court could well find them to be immaterial. To summarize: Mr. Cohen provided Mr. Schwartz with citations (and case summaries) he had found online and believed to be real. Mr. Schwartz added them to the motion but failed to check those citations or summaries. As a result, Mr. Schwartz mistakenly filed a motion with three citations that-unbeknownst to either Mr. Schwartz or Mr. Cohen at the time-referred to nonexistent cases. Upon later appearing in the case and reviewing the previously-filed motion, I discovered the problem and, in Mr. Cohen's reply letter supporting that motion, I alerted the Court to likely issues with Mr. Schwartz's citations and provided (real) replacement citations supporting the very same proposition. ECF No. 95 at 3. To be clear, Mr. Cohen did not know that the cases he identified were not real and, unlike his attorney, had no obligation to confirm as much. While there has been no implication to the contrary, it must be emphasized that Mr. Cohen did not engage in any misconduct.

Hilariously, in a footnote, Perry notes that Cohen also sent an actual real citation that was relevant... but that Schwartz didn't include that one in the filing.

And here, finally, we find out where Cohen convinced an AI to dream up these results. It wasn't ChatGPT like that earlier case, but rather in Google's Bard, which has recently expanded to provide AI-generated responses to search terms directly in search:

The invalid citations at issue-and many others that Mr. Cohen found but were not used in the motion-were produced by Google Bard, which Mr. Cohen misunderstood to be a supercharged search engine, not a generative AI service like Chat-GPT. Cohen Decl. 20. Mr. Cohen had used Google Bard to successfully identify accurate information in other contexts before and did not appreciate its unreliability as a tool for legal research. Id. Like most lay clients, Mr. Cohen does not have access to Westlaw or other standard legal research tools to verify any citations he finds online. Id. Instead, he trusted his attorney to verify them on his behalf. Id.

Mr. Cohen is not a practicing attorney and has no concept of the risks of using AI services for legal research (Cohen Decl. 20)-nor does he have an ethical obligation to verify the accuracy of his research. Mr. Schwartz, conversely, did have an obligation to verify the legal representations being made in a motion he filed. See Fed. R. Civ. P. 11; Rules of Professional Conduct (22 NYCRR 1200.0) Rule 1.1. Unfortunately, Mr. Schwartz did not fulfill that obligation-as he was quick to admit, to his credit. Schwartz Decl. 21-22.

Mr. Cohen sent Mr. Schwartz and his paralegal the citations and summaries on November 25. Cohen Decl. 15; Schwartz Ex. E. Mr. Schwartz and his team then added the citations and descriptions to the motion, went through several additional rounds of revisions (in which Mr. Schwartz was actively involved), and then filed the motion at Mr. Schwartz's direction. See Cohen Decl. 21. As Mr. Cohen's attorney and fiduciary, Mr. Schwartz had final sign-off on the submission and its content. Cohen Decl. 11. Unbeknownst to Mr. Cohen, Mr. Schwartz signed off on the motion without having ever checked the citations it contained. Cohen Decl. 22; Schwartz Decl. 21-22. In summary, Mr. Schwartz's inclusion of the invalid citations was a mistake driven by sloppiness, not malicious intent.

Perry then also further drives the knife into Schwartz:

Also unbeknownst to Mr. Cohen, this is not the first instance in which Mr. Schwartz has been less than meticulous about the accuracy of his citations. In his May 2023 letter to the Court- long before he could have believed that I had any background involvement-Mr. Schwartz (somewhat oddly) offered characterizations about the Seventh Circuit's approach to terminating supervised release claiming his account was per a published opinion of the 7th circuit dealing with supervised release." ECF No. 84 at 2. In reality, Mr. Schwartz simply cited a blogpost-not a published opinion" at all-which itself is thinly sourced and appears to overstate the rigidity of Seventh Circuit law. For example, the motion and blogpost both claim that five purposes of supervision" are used to indicate satisfactory completion of supervised release's decompression stage" but the undersigned has been unable to locate a discrete case substantiating that rigid framework in which the five purposes become factors that mark [the completion of] this decompression state and satisfy that requirement [of completing a decompression state postprison]." Id. (citing PCR Consultants, Federal Supervised Release is not Punishment," https://pcrconsultants.com/federal-supervised-release-is-not-punishment/).

Further, even a quick read of the non-existent cases at issue here should have raised an eyebrow. For example, one of the citations purported to have a 2021 docket number, yet also purported to describe a matter in which a defendant had served a 120-month sentence before being placed on supervised release, the early termination of which had purportedly been affirmed by the Second Circuit-a chronological impossibility on its face. Had Mr. Schwartz skimmed that citation before submitting it to the Court, he might have noticed something awry.

That filing also includes Cohen's own declaration which itself has some fun tidbits:

I must rely on my attorneys in this matter because I was disbarred nearly five years ago...

The declaration also serves to throw Schwartz under the bus, saying that he trusted that Mr. Schwartz would pursue and incorporate my ideas to the extent he thought they were appropriate..." but that as my fiduciary, Mr. Schwartz had final sign-off on each of those submissions."

He details how he found those case citations:

Specifically, the citations and descriptions came from Google Bard. As a non-lawyer, I have not kept up with emerging trends (and related risks) in legal technology and did not realize that Google Bard was a generative text service that, like Chat-GPT, could show citations and descriptions that looked real but actually were not. Instead, I understood it to be a super-charged search engine and had used it in other contexts to (successfully) find accurate information online. I did not know that Google Bard could generate non-existent cases, nor did I have access to Westlaw or other standard resources for confirming the details of cases. Instead, I trusted Mr. Schwartz and his team to vet my suggested additions before incorporating them.

The thing is... this is bullshit. For federal cases, you don't actually need Westlaw to confirm their existence. But... whatever.

Schwartz, realizing he was being thrown under the bus (after he threw Perry under the bus) tried to get in the last word as well:

I work in a law office in which Westlaw and Lexis/Nexis are readily available. I would never, and certainly did not, use any type of Artificial Intelligence tool to draft my motion papers on behalf of Mr. Cohen (nor would I do so for any other client). In fact, after reading Mr. Cohen's declaration, I found out for the first time that he used Google Bard to find those cases. I can assure the Court that I had never heard of this program and our attorneys only use Westlaw or Lexis/Nexis for their legal research.

I realize I made a serious error when I trust Mr. Cohen to be the conduit between myself and his other attorney, Ms. Perry.

Then he goes on to explain why he believed the citations came from Perry, pointing out that Cohen had given Perry a copy of Schwartz's original draft, and sent back comments and a redline from her.

And, the key point, Schwartz now claims that Cohen told him over the phone that Perry would provide citations:

After receiving the redline changes from Ms. Perry, through Mr. Cohen, I spoke with Mr. Cohen via telephone, as I did frequently. On those calls, he reiterated to me that Ms. Perry would be" providing the cases. I was in error in failing to communicate with Ms. Perry to confirm this.

In other words, Schwartz is arguing that his real mistake was not talking directly to Perry, but letting Cohen be his main communication source. He also later claims that Cohen screwed up other communications as well, including telling Perry not to alert Schwartz about the false citations, saying that he (Cohen) would tell Schwartz himself, but did not.

I understand that when asked by my attorneys why she failed to alert me about the fictitious citations before notifying the Court, Ms. Perry told them that she was going to contact me, but Mr. Cohen wanted to notify me himself. Ms. Perry apparently relied on Mr. Cohen to do that. But Mr. Cohen did not notify me about the citation issue. If Ms. Perry had notified me, instead of using Mr. Cohen as a conduit, I would certainly have withdrawn these citations immediately.

In other words many mistakes were made, and there's a lot of blame to go around here."

Also, friendship apparently blurs responsibilities?

Unfortunately, it appears to me that when Mr. Cohen submitted cases to me, he was submitting them to his friend of many years and neglected to focus on the fact that I am an officer of the court. The lines here were clearly blurred between friendship and attorney/client.

I mean, it seems like that's accurate representation of what happened, but still, if you're a lawyer filing documents with a court, you still kinda gotta do the underlying work.