No Sanctions for Michael Cohen’s Hallucinated Citations

From today’s decisions in U.S. v. Cohen Judge Jesse Furman, S.D.N.Y. (See also 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. 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 just one problem: the cases don’t 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 an early draft of the November 29,2023 motion. Cohen asked Perry, who had not yet appeared in the case, to give feedback on the draft. She did. Cohen sent Schwartz a comment that suggested the motion should include a few cases which granted early termination. Schwartz took on board what he thought were Perry’s suggestions, and sent the subsequent drafts of the motion back to Cohen.

On November 25, 20,23, Cohen sent Schwartz three emails containing the cases in question as well as summaries. 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 claimed that he had no access to Westlaw and other standard resources in order to confirm the specifics of cases and “trusted Schwartz and his staff to vet [his] The motion was amended to include the suggested additions.

The trust that was placed in me has been a disappointment.

Schwartz “believed,” that Ms. Perry “had found the cases” based on the earlier exchanges, despite the fact that Cohen’s emails from November 25, 2023 made no mention of Perry.[B]Schwartz “didn’t independently review the cases” because of Ms. Perry’s reputation as “a renowned trial lawyer.” He says that he never considered that the cases cited in his motion were “non-existent,” and that their inclusion was an “honest”, “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” and “the inaccuracies.”[s] … for not checking [the] “Please review all cases before submitting.”

Schwartz recalls Cohen “communicated” to him before sending the cases in November 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 later supply “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 there was not enough evidence to support a sanction for a knowing misbehavior.

[T]The Court must conclude that Schwartz cannot be sanctioned. His citation of non-existent cases was embarrassing and negligent, if not grossly negligent. The Court does not find that the act was done in bad will. 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.” It may be true, but it only supports a finding that extreme carelessness was committed, not bad faith.  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 wrong”

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 the Court put Cohen on notice sanctions would not have been warranted. Cohen is a part of this case, and as a disbarred lawyer, he is not an officer like Schwartz. 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 that Cohen, given all the press and attention Google Bard and similar generative artificial-intelligence tools have received in recent years, believed that it was “super-charged” search engine and not a “generative service.” The Court does not have any basis to question Cohen’s statement that he believed these 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.

As embarrassing as this unfortunate incident was for Schwartz – if not Cohen – the record does NOT support the imposition sanctions in this case.

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

All of this is to say that the Court accepts Schwartz’s testimonies that he mistakenly believed that the cases were from Perry. He did not review the cases independently based on his mistaken belief. He would have researched the case had he known Cohen was 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 The news will be filled with a court case.

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