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Artificial intelligence use in land use law raises concerns after courts sanction attorneys for AI generated false case citations and briefs.
Artificial intelligence is increasingly integrated into land use processes, from generating applications and testimony to drafting legal briefs for appeals. This has led to clients questioning the value of human planners and attorneys, assuming AI's capabilities are comparable. However, generative AI models frequently "hallucinate," fabricating non-existent legal cases, providing false quotations, and inaccurate descriptions, despite appearing credible. The Oregon Court of Appeals has critically noted that AI "generates nonexistent law in accordance with its design," highlighting a severe reliability issue that undermines the foundational principles of legal practice and due diligence.
Courts are now directly addressing the misuse of AI in legal submissions. In the significant case of Ringo v. Colquhoun Design Studio, the Oregon Court of Appeals identified clear evidence of AI-generated hallucinations within an appellate brief. Recognizing that such fabrications undermine the rule of law and an attorney's professional duty to uphold truthfulness, the court imposed a $2,000 sanction on the counsel responsible. Despite the penalty, the court offered a path forward by allowing the attorney to file a revised brief, signaling a balance between punishment for professional negligence and ensuring client representation.
Another notable instance occurred in Doiban v. Oregon Liquor and Cannabis Commission, where petitioner's counsel admitted to using AI for a brief outline and general search engines for legal support after traditional databases yielded no results. This process, however, led to the inclusion of fabricated cases that even search engines erroneously confirmed as real. Counsel's forthright acknowledgment of the mistake, coupled with health issues and a commitment to future corrective actions, led to a reduced sanction of $10,000, down from a potential $16,500. The court's decision underscored the imperative of candor and truthfulness in legal presentations, accepting a redacted brief only after assurances that all non-existent case law was removed and all remaining sources verified. This highlights the court's willingness to mitigate penalties when transparency and corrective measures are adopted.
The Land Use Board of Appeals (LUBA) has also taken a firm position on AI-generated content. In Bartholomew v. Clackamas County, a self-represented petitioner submitted a brief filled with non-existent case citations and authorities misrepresented by AI. Despite the petitioner's claim of good faith and limited access to legal databases—an important consideration given LUBA's mandate for public participation—LUBA ultimately struck the brief outright, refusing to consider it. LUBA emphasized that even self-represented parties must demonstrate "reasonable diligence to verify" legal sources to uphold the integrity and efficiency of the appeal process, especially given statutory short decision-making deadlines. This ruling signifies a less accommodating approach compared to the courts, without the authority to impose direct sanctions for misrepresentation, though other parties might seek fee recovery.
In light of these incidents, it is highly probable that both judicial courts and LUBA will soon implement new rules to explicitly prohibit or, at the very least, require an affirmative statement confirming the validation of all legal sources, especially concerning AI usage. Local land use planning departments are expected to follow suit. This development underscores the critical need for attorneys and land use planners to educate their clients about the significant limitations and risks associated with relying on AI for legal work. While AI tools may offer convenience, the sophisticated nature of land use regulations and laws demands that all participants, whether legal professionals or the public, assume full responsibility for the accuracy, validity, and integrity of the information and arguments they present. Human oversight remains indispensable in ensuring adherence to the rule of law and maintaining trust in the legal system.