Barber v. Morawa

What sanction did the court impose?

In an opinion approved for publication, the court affirmed the denial of the new-trial motion on the merits: the unnotarized affidavits were invalid under Sherry v East Suburban Football League and so did not satisfy MCR 2.611(D)(1), and plaintiff showed no effect on her substantial rights. It then held, joining federal courts applying FR Civ P 11, that "counsel's submission of fabricated and unsupported authority violated the duty of reasonable inquiry required by MCR 1.109(E)(5)," and that the appellate brief "grossly disregarded the requirements of fair presentation," authorizing sanctions under MCR 7.216(C)(1)(b) and requiring them under MCR 1.109(E)(6). The trial court filings were discussed not as an independent basis for appellate sanctions but to show counsel was on notice. The court remanded for an evidentiary hearing to determine defendant's actual damages, including reasonable attorney fees, incurred as a direct result of the vexatious appeal, to be paid by plaintiff's counsel personally, and directed the Clerk to forward the opinion to the Attorney Grievance Commission for possible investigation.

Why does Barber v. Morawa matter for law firms using AI?

Barber fills what the court described as a gap in Michigan law. The panel observed that “Michigan has no specific caselaw regarding the consequences for fabricated or unsupported legal authority generated through the misuse of artificial intelligence,” turned to federal decisions under FR Civ P 11 because MCR 1.109(E) derives from it, and then held: “We join these other jurisdictions and hold that counsel’s submission of fabricated and unsupported authority violated the duty of reasonable inquiry required by MCR 1.109(E)(5).” The standard is objective: quoting Attorney General v Harkins, the court said “[t]he attorney’s subjective good faith is irrelevant,” and it held that “Counsel’s explanation does not excuse the violation.” As the court put it, lawyers “must verify that cited authorities exist, read the authorities on which they rely, and ensure that those authorities support the propositions asserted.”

The court stressed repetition after notice. Defendant identified fabricated citations in the December 2024 protective-order motion and again in the February 2025 new-trial motion, where counsel’s reply acknowledged “an innocent and inadvertent mistake”; counsel then filed an appellate brief with another fabricated case, filed a reply without acknowledging it, and waited eight months to file a Notice of Correction. That notice, which represented that counsel had “since implemented verification protocols to prevent recurrence,” itself attributed quotations to People v Miller that come from MRE 606(b)(2). The court described the sequence as “anything but an isolated mistake,” explained in a footnote that it discussed the trial-court filings to show counsel “was on notice,” and noted that counsel acknowledged at oral argument that he had used AI to prepare the correction.

The remedy runs against the lawyer, not the client. The court found authority for sanctions under MCR 7.216(C)(1)(b) for a vexatious appeal and held that sanctions under MCR 1.109(E)(6) are mandatory once a violation is found. It remanded for an evidentiary hearing on defendant’s actual damages and fees caused by the appeal, “to be paid by plaintiff’s counsel personally,” and sent the opinion to the Attorney Grievance Commission. In reaching that remedy, the opinion surveyed sanctions imposed elsewhere, from fee awards and fines to stricken briefs, dismissed appeals, reprimands, and disciplinary referrals.