Opinion 26-37

March 26, 2026

Digest:  (1) A court attorney-referee who has determined that an attorney submitted frivolous papers that were generated by artificial intelligence has discretion to determine what action is appropriate under the circumstances.  (2) If the referee decides to report the conduct to the attorney grievance committee, the referee is disqualified in all matters involving the attorney, both while the disciplinary matter is pending and for two years thereafter.  Any such report, if made, may await the conclusion of the proceeding.

Rules:   CPLR 4301; 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); 100.6(A); 130-1; 22 NYCRR part 1200, Rules 1.1, 1.3; Opinions 24-143; 23-20; 22-123; 22-49; 19-107; 15-69; 13-127; 10-122; 10-85; NY City Bar Assn Comm on Prof Ethics Formal Op 2024-5 (2024). 

Opinion:

          On reviewing an application before him/her, the inquiring court attorney-referee observed that an attorney’s memorandum of law advanced weak and misaligned arguments, cited non-existent cases, fabricated quotations, cited cases which “did not stand for the propositions … asserted,” and was otherwise “haphazard and replete with errors.”  The referee determined that the application was “frivolous” and the memorandum appeared to be the product of artificial intelligence.  The referee now asks if he/she must report the attorney to the grievance committee or take some other action, such as directing the attorney to show cause why he/she should not be referred to the grievance committee.

          As quasi-judicial officials, court attorney-referees must comply with the Rules Governing Judicial Conduct “in the performance of their judicial functions” (22 NYCRR 100.6[A]).  Like judges, they must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Therefore, a referee who has information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]). 

          We understand the intersection of artificial intelligence (AI) and attorney ethics is a growing concern in the legal profession, given that generative AI can produce very plausible-looking results with fabricated case names, citations, holdings, and quotations which appear to support a preferred legal position, but do not actually exist.  While the Rules of Professional Conduct do not necessarily preclude use of generative AI for research and drafting in a court proceeding, where an attorney fails to exercise “reasonable diligence” to independently verify the AI’s research results, various provisions of the rules may be violated (see e.g. NY City Bar Assn Comm on Prof Ethics Formal Op 2024-5 [2024]; 22 NYCRR 1200, Rule 1.3).  Indeed, attorneys are also required to provide “competent representation,” which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” (NY City Bar Assn Comm on Prof Ethics Formal Op 2024-5 [2024]; 22 NYCRR 1200, Rule 1.1). 

          The inquiring referee has concluded that the attorney’s submissions were both AI-generated and frivolous, as the memorandum contained numerous errors, including non-existent case citations and wrongly relied upon propositions.  As always, the determination of whether the two-prong test has been met ordinarily rests within the discretion of the inquiring judge or quasi-judicial official, who is presumptively “in the best position to evaluate and assess all relevant, known circumstances” (Opinion 24-143).  Here, the “substantial likelihood” prong is met due to the referee’s first-hand knowledge of the situation, and it appears from the inquiry that the referee has concluded that the “substantial violation” prong is met as well.  If so, the referee must take “appropriate action.”

          Where the two-prong test is met, what action is “appropriate” under the circumstances is also ordinarily left to an inquiring judge’s discretion (see e.g. Opinions 23-20; 22-49).  That is, unless the judge concludes the misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness, or fitness as a lawyer, the judge has the discretion to take some other step and need not report the conduct (see e.g. Opinion 10-85).  We have noted “appropriate action ‘depends upon all the surrounding circumstances known to the judge’ and may include counseling and/or warning a lawyer, reporting a lawyer to his/her employer and sanctioning a lawyer” (Opinion 13-127 [citation omitted]).  It is also permissible to consider “whether the lawyer shows genuine remorse, contrition, or ignorance of a rule; whether the lawyer has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor” known to him/her (id.). 

          A judge in a similar circumstance might issue an order directing the attorney to show cause why they should not be sanctioned (see 22 NYCRR 130-1) or take other actions in his/her discretion.  We likewise see no reason to limit the inquiring referee’s discretion in deciding what action is appropriate under the circumstances.  As always, the referee may also exercise his/her discretion to report the attorney’s conduct to the attorney grievance committee even where not ethically required to do so (see e.g. Opinions 13-127; 10-122).

          If the referee reports the attorney to the grievance committee, he/she must disqualify in all cases involving that attorney both while the disciplinary matter is pending and for two years thereafter (see 22 NYCRR 100.3[E][1]; Opinion 22-123).  The referee may wait until conclusion of the proceeding before reporting the attorney (see e.g. Opinions 22-123; 19-107).

We have recognized that disqualification works differently for a court attorney-referee than for a judge, because a referee cannot relieve him/herself from an assignment under CPLR 4301 (see Opinion 15-69).  Thus, where disqualification is necessary, the referee must “advise the judge who appointed him/her” of the need for disqualification so that the matter can be reassigned (id.).