Prososki v. Regan

Issue

Can a state supreme court strike an appellate brief and dismiss the appeal because the brief rests on fabricated citations and quotations, even when the lawyer who signed it insists he never used generative AI?

Rule

The Nebraska Supreme Court held that it did not need a new AI rule. It applied Neb. Ct. R. of Prof. Cond. 3-503.3(a)(1), the duty of candor, which forbids knowingly making a false statement of law to a tribunal or failing to correct one; 3-501.1 and its comment 6, which make keeping abreast of the benefits and risks of relevant technology part of competence; 3-501.3, diligence; 3-503.1, which bars contentions with no nonfrivolous basis; and 3-508.4(c), dishonesty, deceit, or misrepresentation, for which the court has held that actual intent to deceive is not required because the focus is the effect of the lawyer's conduct. Discipline flows through Neb. Ct. R. 3-301 and 3-303(B). On the appellate side the court invoked Neb. Ct. R. App. P. 2-109(D)(1)(e) and its inherent authority to strike a brief and dismiss an appeal.

Application

Jason C. Regan's opening brief, signed and certified by his counsel, cited fake cases, real cases with fabricated quotations, real cases with mischaracterized holdings, and Nebraska statutes and court rules with fabricated quotations. The Nebraska Supreme Court worked through examples. The brief repeatedly cited "Kennedy v. Kennedy, 27 Neb. App. 510, 934 N.W.2d 57 (2019)" for the proposition that joint custody is favored; the only real 2019 Kennedy v. Kennedy is an unpublished Court of Appeals memorandum opinion at a different citation that never discusses parenting time, and Nebraska law neither favors nor disfavors any custody arrangement. The brief attributed to Simons v. Simons, a real decision of that court, a proposition about reversing denials of attorney fees that Simons does not address, plus a block quotation that does not exist in Simons or anywhere in Nebraska case law. It also misquoted Neb. Rev. Stat. 43-2923(1). Jennifer M. Prososki moved to strike the brief and dismiss the appeal, attaching a chart of the fake citations. Rather than respond, counsel moved twice for leave to file a corrected brief, blamed "sloppy" citation practice from "copying and pasting . . . from Westlaw without verifying the official reporter," a late-granted extension, and a "catastrophic screen crack" on his laptop, and expressly denied inventing cases or relying on AI. The court found that copy-and-paste could explain a handful of off reporter references but could not explain quotations that exist nowhere in Nebraska law or cases that appear to be made up entirely, and it found the wrong-draft explanation not credible. Crucially, the court declined to make its analysis turn on whether AI was used at all. On the state of mind required by the candor rule, it agreed with courts that treat conscious avoidance, or a failure to review a brief and verify that the law presented is good law, as satisfying the knowledge element, and it added that even if the initial filing was not knowing, counsel did not try to correct the false statements until Jennifer moved to strike, and conceded the authority was not grounded in Nebraska law only when pressed from the bench at oral argument.

Conclusion

The Nebraska Supreme Court struck Jason's appellate brief, dismissed his appeal under its inherent authority, and referred his counsel to the Counsel for Discipline of the Nebraska Supreme Court. It imposed no fine and no fee award, but said the sanction does not preclude Jennifer from filing for attorney fees. In fairness to the client, it reviewed the record for plain error and found none, and it rejected Jennifer's cross-appeal on the merits, affirming the decree of dissolution. Judge Vaughn did not participate. Justice Stacy concurred, agreeing on sanctions and referral but reasoning that once the court examined the record for plain error it had engaged in appellate review, so affirmance rather than dismissal was the more appropriate disposition. The decision is published at 321 Neb. 38 and binds Nebraska courts.

We hold that the submission of fictitious authority to a court, whether through generative AI or not, can be resolved by application of our existing rules of professional conduct and court rules.

Per curiam opinion of the Nebraska Supreme Court

Jason's counsel's assertion that he simply filed the wrong draft of the appellate brief lacks credibility.

Per curiam, rejecting counsel's explanation for the fabricated citations

This appeal marks our first opportunity to consider how courts should respond when a party files a brief that is riddled with fictitious case citations, fabricated quotes, and arguments that materially misstate the controlling legal authority.

Stacy, J., concurring

Why it matters. Prososki is useful precisely because counsel denied using AI. The Nebraska Supreme Court held that the denial changes nothing, which removes the most common defensive move in these cases and means a lawyer cannot escape the duty of candor by disputing the tool. It also shows a state high court reaching for non-monetary sanctions, striking the brief and ending the appeal, rather than a fine.

Read the full opinion on CourtListener

This summary was written from the opinion itself. Every quotation above was located in the text of the decision it is attributed to. It is a summary for public education and is not legal advice.

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