Hallucinations (and Alleged Lack of Candor About Them) in Federal Appellate Briefing
From McCarthy v. U.S. DEA, decided yesterday by Third Circuit Judge Cindy Chung, joined by Judges Peter Phipps and Jane Roth:
McCarthy is a physician assistant who held a DEA COR [Certificate Of Registration] allowing him to prescribe Schedule II through V controlled substances. McCarthy prescribed controlled substances despite the fact that he was not being supervised by a physician with whom he had a written agreement as required by Pennsylvania law. In response to his conduct, on April 21, 2023, the DEA issued McCarthy an Order to Show Cause why his continued registration was not inconsistent with the public interest. [Factual details omitted. -EV]
McCarthy … argues that the Administrator’s decision to revoke his COR was arbitrary and capricious or an abuse of discretion…. To make this point, McCarthy primarily relies on “summaries” of eight DEA adjudications. McCarthy’s counsel now acknowledges that seven of these summaries were inaccurate, that the eighth decision does not exist, and that the summaries and non-existent decision were all generated by Artificial Intelligence (AI). McCarthy’s counsel further acknowledges that he never took care to confirm the accuracy of the summaries or even that the decisions existed. {We ordered McCarthy’s counsel to provide the cases to the Court and explain if and how he verified the accuracy of his summaries. In his response, McCarthy’s counsel acknowledged that he knew that he had submitted erroneous summaries and a non-existent case to this Court long before the filing of his response. We are separately ordering McCarthy’s counsel to show cause why he should not be sanctioned for his conduct, particularly for his lack of candor to the Court.}
Accordingly, we will not consider this portion of his brief. {McCarthy’s counsel also concedes that the Government has successfully rebutted the eight summaries. This provides us with another reason not to consider this portion of the brief.} …
Here’s the order to show cause, which requires McCarthy’s lawyer “to show cause why he should not be sanctioned for his conduct with respect to the briefing in this case, specifically with regard to his lack of candor to the Court”:
See ECF 45-1 (explaining that Counsel “confirmed” that text had been generated by AI in February and that “it first occurred” to Counsel “[i]n mid-February 2025” that certain case descriptions had been generated by AI); id. (first informing this Court of that belief on May 19, 2025 and only after prompting from this Court). In particular, Counsel shall address whether he violated his duty of candor to the Court in filing his Reply Brief where he (1) represented that his Opening Brief was “a good faith effort to chronicle Agency disparities,” while never having read said decisions; (2) minimized the inaccurate summaries as “immaterial misstatements about the cited cases’ tangential details,” while having never read said decisions; and (3) failed to correct his misstatements and to disclose that one case did not exist. Reply Br. 14.
Additionally, Counsel shall address his failure to self-disclose to the Court, prior to the Court’s letter, the inaccuracy and non-existence of cases cited. Counsel is advised that the Court is considering imposing discipline in the form of monetary sanctions. Counsel shall file his response within 10 days of the date of this order. Within 10 days of the date of this order, Counsel may file an application requesting to appear before the panel in person. If he does so, the panel will schedule a hearing. This panel may also refer this matter to the Standing Committee on Attorney Discipline.
And from the lawyer’s response, also filed yesterday, which seems to me about as effective and professional an apology and response as possible given the circumstances (recognizing of course that there would have been much less to apologize for if the lawyer had promptly acknowledged the error):
At the outset, undersigned counsel recognizes he is subjec
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