The U.S. Court of Appeals for the Fifth Circuit is soliciting comments on a proposed change. Rule 32.3 would now restrict the use of generative AI (with changes in red):
32.3. Certificate of Compliance. See Form 6 in the Appendix of Forms to the Fed. R. App. P. Additionally, counsel and unrepresented filers must further certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human. A material misrepresentation in the certificate of compliance may result in striking the document and sanctions against the person signing the document.
The new certificate of compliance would require the lawyer to check one of two boxes:
3. This document complies with the AI usage reporting requirement of 5th Cir. R. 32.3 because:
no generative artificial intelligence program was used in the drafting of this document, or
a generative artificial intelligence program was used in the drafting of this document and all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human.
I think this proposal strikes a good balance. Lawyers are not barred from using generative AI, but they have to attest that they used this technology. And you can be certain that briefs with the AI box checked will be reviewed more carefully. Indeed, I would be eager to see an empirical study performed about the briefs that check the second box. Clients may also want to see this information–they may have thoughts about lawyers who bill their time to use generative AI.
Josh Blackman
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