Updated October 26, 2026, to reflect the Fifth Circuit’s decision not to adopt the proposed AI-certification rule and subsequent developments.
The Fifth Circuit Court of Appeals declined to adopt its proposed rule requiring a special certification about generative artificial intelligence in court filings. The court announced its decision on June 10, 2024. Lawyers following the proposal should know that the decision has been made and the proposed AI certification did not take effect.
The court still expects lawyers to check their submissions. Its decision on the proposed rule explains that lawyers remain responsible for the accuracy of filings, whatever technology they use. For firms considering AI-assisted research or drafting, the practical questions concern the rules that apply to the particular case and the review needed before work leaves the firm.
What the Fifth Circuit proposed and why it declined the rule
The proposed amendment to Fifth Circuit Rule 32.3 and Form 6 would have required counsel and people representing themselves to certify whether generative AI had been used to prepare a filing. If it had, they would have had to certify that a human reviewed the generated text, including citations and legal analysis, for accuracy and approved it.
Comments were due January 4, 2024. After considering them, the court decided a separate AI rule was unnecessary at that time. Its announcement reminded lawyers to check both the law and the facts in their filings and warned that failing to do so could lead to sanctions. It cited Federal Rule of Appellate Procedure 46(b)(1)(B), which concerns conduct unbecoming a member of the court’s bar.
The court’s current rules and forms retain the ordinary Rule 32.3 certificate requirements. Form 6 does not contain the proposed AI certification checkbox. Lawyers should use the current court materials rather than the unadopted draft.
What can go wrong with AI generated legal documents
A document can look persuasive while containing a quotation that never appeared in the cited opinion. Checking that a case exists will not catch every problem. The lawyer also needs to read what it actually says and assess whether it supports the argument being made.
The Fifth Circuit addressed this risk directly in Fletcher v. Experian Information Solutions. On February 18, 2026, the court imposed a $2,500 sanction on the lawyer who signed an appellate reply brief. It found that she had used AI to draft a substantial portion, if not all, of the brief, failed to verify the content, and was not forthcoming in her responses to the court’s questions. The opinion identified fabricated quotations and inaccurate statements about law and the record.
That appellate sanction concerned the lawyer’s own filing and responses. It was separate from the district court sanctions addressed in the underlying appeal. The example gives firms a concrete reason to review the source material behind each argument and to respond candidly if a court identifies a problem.
When lawyers may need to disclose AI use
The Fifth Circuit’s decision resolved its own proposed certification requirement. A lawyer handling a different proceeding should check that court’s local rules, the assigned judge’s standing orders, and any case-specific directions before drafting or filing. An AI policy for a firm with several practice areas should leave room for those differences.
Client communication raises a separate question. ABA Formal Opinion 512 explains that disclosure to a client depends on the circumstances, including how AI affects the representation and whether the client needs information to make an informed decision. Confidentiality risks may require informed consent before information is entered into a tool. A firm should assess those duties before uploading client materials, even when a court requires no special AI certification.
For each matter, it helps to record who checked the applicable filing requirements and who considered any client disclosure or consent issue. That makes it easier for the lawyer signing a document to find the answer without relying on a general office assumption.
How bar guidance addresses AI in legal practice
The ABA issued Formal Opinion 512 on July 29, 2024. It applies existing professional duties to generative AI, including competence, confidentiality, communication, supervision, and reasonable fees. Lawyers need to understand the capabilities and limitations of the tools they use and undertake an appropriate level of independent review. The opinion interprets the ABA Model Rules; lawyers should consult the professional conduct rules and relevant guidance in their own jurisdiction. Blue Seven’s guide to the ABA’s approach to AI provides additional context.
State guidance can also help firms identify practical issues. Florida Bar Ethics Opinion 24-1, for example, discusses confidentiality, oversight, billing, and advertising. It is an advisory opinion, not a nationwide rule. Its focus on the actual use of a tool gives firms a useful starting point for questions to raise with the lawyers responsible for their policies.
Safeguards for law firms using AI to draft legal documents
A workable office process should identify which tasks staff may use AI for and which require approval before work begins. Asking a tool to organize a draft presents different review questions from asking it to supply the law supporting a motion. Define the task clearly enough that the reviewing lawyer knows what the tool contributed.
Before using a service with client information, examine its data-retention and sharing practices, security protections, and whether inputs may be used to improve the system. Florida’s opinion specifically addresses these concerns. An account label or a familiar product name does not answer the confidentiality question for a particular use. Resolve that question before submitting confidential material.
For court-bound documents, a firm can use a source-checking worksheet. Record each authority, where the original was retrieved, and the passage that supports the proposition. Compare quotations word for word and confirm pinpoint citations. Check factual assertions against the record, then have the responsible lawyer review how the authorities and facts support the requested relief. This suggested workflow helps make the review visible rather than leaving it to an undocumented final glance.
Assign responsibility for that review before the filing deadline. A paralegal may help locate sources, but the workflow should give the signing lawyer time to resolve missing authorities, misleading summaries, or discrepancies in the record. If a source cannot be verified, leave the unsupported claim out until the issue is resolved.
Billing procedures need attention too. Florida’s guidance cautions against improper charges and duplicative billing when AI is used. Firms should record the work actually performed and check proposed charges against their fee agreements and applicable rules. For hourly work, bill for time actually spent rather than the hours the task might have taken without AI.
What attorneys should check before filing
The governing obligations depend on the forum. In federal district court civil proceedings, Federal Rule of Civil Procedure 11 generally ties a submitted pleading, motion, or other paper to an inquiry reasonable under the circumstances. Among other requirements, legal contentions need support in existing law or a nonfrivolous argument to change it, and factual contentions need the evidentiary support the rule specifies. Those district court obligations are separate from the appellate rules the Fifth Circuit cited.
For appellate practice, consult the applicable appellate rules and local requirements. Federal Rule of Appellate Procedure 46 addresses attorney discipline, including the court’s authority under Rule 46(c) to discipline an attorney for specified misconduct after procedural protections. The Fifth Circuit’s rejection of the proposed AI checkbox left its existing rules in place.
Before submitting a document, confirm that the sources support it, the facts match the record, required disclosures have been addressed, and the lawyer responsible for the filing has completed the necessary review. The firm can build that final check into its usual filing process whenever AI contributes to the work.
Written By Mari Gaines, JD – Legal Content Writer
