The Sixth Circuit finally weighed in on the use of fake cases hallucinated by artificial intelligence. A panel recently sanctioned two Tennessee attorneys for a smorgasbord of misconduct during merits briefing, including citing fake cases. In Whiting v. City of Athens, — F.4th —-, Nos. No. 24-5918/5919, 25-5424, 2026 WL 710568 (6th Cir. 2026), the Court found that counsel had not only misrepresented the district court’s sanctions order, but had also cited over 24 fake citations, provided citations that lacked the language quoted in the brief, and provided citations that failed to support the cited proposition. 2026 WL 710568, at *1.
The panel awarded sanctions under Rule 38, holding the use of fake citations constituted “misconduct in arguing the appeal.” Id. at *2. It found that using fake citations went well beyond “sloppiness in drafting.” Id. at *1 n.1 & 2 (citation omitted). The panel also explained that its show cause to explain who wrote the briefs, whether generative AI was used, and how the briefs were cite-checked (among other things) did not violate either the attorney-client privilege or work-product doctrine. Id. at *6.
The Court ordered the attorneys to reimburse appellees for their attorneys’ fees, to pay double costs to appellees for costs incurred–“the stiffest penalty available under Rule 38”–and to pay $15,000 each in punitive sanctions. Id. at *7–10. These sanctions were justified by aggravating factors including further misconduct, defying the show cause order, and prior discipline for lack of candor before a tribunal. Id. at *9. The Court was sending “the loudest message” possible “that this type of conduct is not allowed in our court or any other.” Id. at *8.
Here are three takeaways from the decision:
First, the Sixth Circuit did not reject the use of AI, including generative AI, in research and brief writing. Although Whiting refers to AI and hints at its use, Whiting does not expressly address the use of AI. Presumably, the Court does not know whether the attorneys used AI because the attorneys “did not seriously respond to [the] show cause order.” Id. at *6.
Second, the Sixth Circuit placed the use of AI as fitting comfortably within federal rules and local rules (including those for disbarment), and a court’s inherent authority. See id. at *5–7. The use of AI was not treated as different or special—though, as with all tools, lawyers should proceed ethically and with care.
Third, lawyers (and their clients) should be prepared to disclose the use of AI to the Court. Although the circuit does not have a local rule requiring attorneys to disclose the use of AI, Whiting holds that court-ordered disclosures about the use of AI do not impinge on attorney-client privilege or the work product doctrine. This ruling may encourage district courts in the circuit to order such disclosures, whether in the context of sanctions or not.
