A benchslap heard round the Sixth Circuit

Whiting v. City of Athens, 170 F. 4th 155 (6th Cir. 2026), should be required reading for any attorney thinking about using generative-AI tools to do their legal research or writing. It’s also a pretty good case study in what not to do if the court issues a show-cause order directed to you, as the attorney.

Judge Bush doesn’t make any effort to hide the ball here. You know right away that this isn’t going to go well for the attorneys in question: “This opinion addresses the misconduct of Glenn Whiting's lawyers, Van Irion and Russ Egli, in their briefing before this court and the sanctions we impose for it. That briefing repeatedly misrepresented the record, cited non-existent cases, and cited cases for propositions of law that they did not even discuss, much less support.” A footnote conservatively estimated there to be “over two dozen fake citations and misrepresentations in Whiting’s briefs.”

The court, it seems, was none too amused. It ordered Whiting’s attorneys to show cause why they should not be sanctioned. Specifically, the order directed them to:

(1) explain why they should not be sanctioned for citing fake cases, (2) provide a copy from Westlaw or LexisNexis of all the cases and authorities cited in all of the briefs filed across the three appeals, (3) highlight any material that they quoted from those cases, (4) tell us who wrote the briefs in each case, (5) tell us whether the briefs were ghostwritten in whole or in part, (6) tell us whether they used generative AI to write the briefs, and (7) explain how they cite-checked the briefs. 

Pretty embarrassing, right? Don’t worry, it gets worse. Rather than comply with the show-cause order, Whiting’s attorneys doubled down, deciding the better play was to challenge the order as “void on its face for failing to include a signature of an Article III judge,” and asserted that it was “motivated by harassment of the Respondent attorneys,” and “reflect[ed] illegal ex-parte [sic] communications within this Court.”

Practice tip: a mea culpa probably would have gone a long way toward mitigating what was to come. 

The court sanctioned Whiting’s attorneys for bringing a frivolous appeal, in violation of Fed. R. App. P. 38. “Whiting's appeal is frivolous as argued because Irion and Egli submitted fake cases, and inventing case law is a misrepresentation of law. ‘A fake opinion is not existing law[,] and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law, or for establishing new law. An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.’” (citing Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 461 (S.D.N.Y. 2023) (cleaned up).

Given the egregiousness of the conduct by Whiting’s attorneys, the imposition of sanctions is hardly surprising. But the Sixth Circuit’s opinion is putting all attorneys who use AI on notice: “Citing even a single fake case can be sanctionable because no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that a lawyer has not personally read and verified.” (citation omitted)

The court also imposed sanctions pursuant to its inherent authority, on the ground that “Whiting's appeal in this court is meritless, and any reasonable attorney should know that a case is meritless if the only authority on which he can rely is a figment of imagination.” Moreover, by relying on fake cases and misstated propositions, the court found that Whiting’s attorneys “acted with an improper purpose because they have used the court system to try to force a result that they could not obtain under the applicable law.”

Finally, the court did not ignore the ethical and professional implications: “Irion's and Egli's failure to comply with the basic rules of our profession has forced us and the City to unnecessarily expend time and resources on a case that should have been litigated and resolved straightforwardly but was not. More importantly, by breaching our trust, we can no longer rely on the representations in Irion's and Egli's briefs, harming both their clients (whose cases are now viewed with skepticism) and this court (who must now independently verify everything Irion and Egli write).”

The above paragraph is probably the real heart of the matter in today’s brave new AI world. Where generative AI still hallucinates cases, citations, or propositions of law with regularity, the attorney who uses AI is obligated to check everything that AI has produced. The consequences for the failure to do so can be severe. The Sixth Circuit imposed the following sanctions on Whiting’s attorneys: (1) full reimbursement of the appellees reasonable attorneys' fees on appeal in all three appeals; (2) payment of double costs to appellees for costs incurred under 28 U.S.C. § 1920 on appeal in all three appeals; (3) payment of $15,000 by each attorney to the registry of this court as punitive sanctions for the proceedings in this court in all three appeals; and (4) a referral to the chief judge to consider disciplinary proceedings under Sixth Circuit Local Rule 46.

Harsh? Undoubtedly, though the attorneys’ own conduct in the case was certainly an aggravating factor. Beyond that, AI’s potential to upend our long-established professional norms was clearly on the court’s mind. Some parting words that we would all do well to heed:

Citing fake cases unnecessarily burdens the court and the taxpayers, so courts can and should fine the offending lawyers to reimburse the court for its time. A lawyer's misrepresentation of the law and facts heavily burdens the courts and their staffs. We rely on good briefing to narrow and clarify the issues for our review while helping us locate the facts and the law that will govern the case. But we did not have that assistance from Whiting's counsel because we could not rely on any of their briefing to truthfully explain the facts and governing law. Their submission of fake cases and factual misrepresentations forced the court to individually verify every single citation to determine the appropriate sanction. To call these consolidated appeals a burden would be an understatement.

Here at Natural Legal Intelligence, we’re not convinced that AI’s juice is yet worth the squeeze. Verifying every single citation, every single proposition of law? That sounds a lot like the legal research we’ve already been doing for decades, but with the added aggravation of trying to locate cases that don’t exist or finding out that the AI tool has misquoted the case or misstated the propositions of law. As a wise woman once said, “Ain’t nobody got time for that!”

Opinion available at https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0080p-06.pdf