No Sanctions for Michael Cohen Hallucinated Cited Matter


Today’s decision is a good example. U.S. v. Cohen Judge Jesse Furman of the Southern District of New York Judge Jesse Furman (S.D.N.Y.) N.Y. Times [Benjamin Weiser]):

In support of the motion [for early termination of supervised release], Schwartz [Cohen’s lawyer] The Second Circuit allegedly confirmed three “examples”, which were decisions that granted early termination of supervised releases. See id. At 2-3 (citing United States v. Figueroa-Florez, 64 F.4th 223 (2d Cir. 2022); United States v. Ortiz (No. No. 21-3391, 2022 WL 44244741 (2d Cir. Oct. 11, 2020; and United States v. Amato2022 WL 1669877 (2d Circuit. May 10, 2022). There was only one problem. The cases did not exist. Although the Government failed to point that fact out in its opposition to Cohen’s motion, E. Danya Perry—who entered a notice of appearance on Cohen’s behalf following the Government’s submission—disclosed in a reply that she had been “unable to verify” the citations in Schwartz’s filing….

Schwartz (aided in his own counsel) & Cohen (aided in Perry)[,] … [w]ith one exception discussed below, … tell the same basic story. Schwartz sent Cohen a draft of the motion that would be filed on November 29, 2023 in early November 2023. Cohen asked Perry, who had not yet appeared in the case, to give feedback on the draft. She did. Cohen told Schwartz that he had received a comment from Perry, who said the motion should mention a few cases where early termination was granted. Schwartz adopted what he believed to be Perry’s comments and sent subsequent drafts to Cohen.

On November 25, 2023 Cohen sent three emails with the cases and summaries to Schwartz. Cohen had obtained the cases and summaries from Google Bard, which he “did not realize … was a generative text service that, like Chat-GPT, could show citations and descriptions that looked real but actually were not. Instead, [he had] understood it to be a super-charged search engine ….” Cohen said that he “did not have access to Westlaw, or other standard resources to confirm the details of cases”, and “trusted Mr. Schwartz’s team to vet [his] “Suggested additions” before incorporating them into the motion.

This trust was unfounded

Schwartz “believed”, based on the previous back and forth, that Perry had “found” the cases.[B]Schwartz “didn’t independently review the cases” because of Ms. Perry’s reputation as “a renowned trial lawyer.” He states that he had “never considered that the cited cases were ‘nonexistent’,” that their inclusion in his action was an “honest and unfortunate mistake.”[]”And that he had no intention to deceive Court.”

The first Schwartz learned of the problem was when the Court issued its  Order to Show Cause on December 12, 2023; he then spoke to Perry’s colleague, who informed him that Cohen, not Perry, had been the source of the cases. Schwartz claims that he would have “researched” the cases if he had “believed Mr. Cohen” as their source. He admits he “bear[s] He “sincerely apologized for” the “submission,” saying that “the errors” were “completely unacceptable.”[s] … for not checking [the] Cases personally before submitting.”

Schwartz remembers that Cohen “communicated with him” before sending the cases to him on November 25, 2023. [him] Schwartz claimed that Cohen said that he told Schwartz that Perry would provide the cases. Cohen denies this, but he doesn’t dispute Schwartz’s claim. Schwartz believes that Schwartz mistakenly assumed in good faith that Perry had provided the cases.

The Court believes that this discrepancy has no real significance. Cohen told Schwartz, at most, on an unspecified date, that Perry would provide later “cases”. Schwartz, however, does not suggest and the record doesn’t show that Cohen identified Perry. The following are some of the ways to get in touch with us. On November 25, 2023, Cohen provided a number of problematic cases. Even if Cohen had not said anything to Schwartz that would suggest that Perry might provide cases, Perry’s comments on the first draft that Cohen sent to Schwartz were a good-faith basis for Schwartz’s belief that Perry provided the cases. All of that is to say, the Court credits Schwartz’s testimony that he genuinely, but mistakenly, believed that the cases had come from Perry; that he did not independently review the cases based on that belief; that he would have researched the cases had he known that Cohen was the source; and that he did not intend to deceive the Court….

Judge Furman concluded sanctions should only be applied for intentional misbehavior and not carelessness. There was insufficient evidence of this type of intentional misbehavior.

[T]The Court must conclude that Schwartz cannot be sanctioned. His citation of non-existent cases was embarrassing and was certainly negligent, if not grossly negligent. The Court can’t find that it was done with bad faith. Schwartz, based on Cohen’s account of Perry’s comments regarding the first draft, erroneously believed that Perry had written the cases. Schwartz admits that it was his responsibility to check the citations and then submit them to the Court. The Court accepts his explanation as to why he failed to do so. He said that he was confident in the accuracy and reliability of the cases because of Perry’s reputation, and that he did not consider that they were non-existent.

The Court also credits Schwartz’s representations—that inclusion of the cases in his motion was an “honest” and “unfortunate mistake[]”; that he “had no intention to deceive the Court”; and that he would have withdrawn the citations immediately if given the opportunity—and does not doubt the genuineness of his apologies and acceptance of responsibility. Perry, in response to Schwartz’s submission asserts that even a “quick read” of the Citations “should have raised a eyebrow.” This may be the case, but at best, it supports an assessment of extreme carelessness and not malicious intent.  And it is noteworthy that the Government’s lawyers—who presumably engaged in more than a “quick read” of Schwartz’s motion and, thus, saw the citations at issue before filing their opposition—did not “notice[] “Something is awry”, themselves.

Cohen is not a sanctionable person either. The Court’s Order to Show Cause referred only to Schwartz. It did not inform Cohen about the possibility of sanctions. Even if Cohen had been put on notice by the Court, sanctions still would not be warranted. Cohen is a defendant in this case and is not a court officer, like Schwartz, because he has been disbarred. He was entitled to rely on his counsel and to trust his counsel’s professional judgment—as he did throughout this case.

It is surprising, given the attention and press that Google Bard has received and other artificial intelligence tools that generate text, that Cohen thought it was a “supercharged search engine,” rather than a generative text service. The Court has no reason to doubt Cohen’s assertion that he thought the cases were real. Indeed, it would have been downright irrational for him to provide fake cases for Schwartz to include in the motion knowing they were fake—given the probability that Schwartz would discover the problem himself and not include the cases in the motion (as he should have) or, failing that, that the issue would be discovered by the Government or Court, with potentially serious adverse consequences for Cohen himself.

The record in this case does not support the imposition or sanctions.

Note that sanctions are sometimes imposed for simple carelessness. I get the impression that this particular detail was a major influence on the judge.

The Court believes Schwartz’s testimony, which states that he believed, albeit mistakenly, that the cases came from Perry. He did not review the cases independently based on this belief. He would have done research if he had known that Cohen had been the source.

If in a future case a lawyer instead just relies directly on ChatGPT or Google Gemini, without cite-checking—as opposed to relying on information that he thought came from another, reputable lawyer—the result might well be different (as it was in Mata v. AviancaThe first Hallucitation (A court case will hit the news).


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