In re Estate of Ruth M. Gerdes

What is the current procedural posture?

In a Rule 23 order by Justice Hutchinson (Presiding Justice Kennedy and Justice Jorgensen concurring), the court dismissed the appeal in part for lack of jurisdiction and affirmed the trial court's remaining orders. On the appellee's brief, it held that citing nonexistent cases and misrepresenting existing ones violated Ill. S. Ct. R. 341(i) and 341(h)(7), that McClure "demonstrated a lack of competence" under Ill. R. Pro. Conduct 1.1, and that his citations implicate Rules 3.1, 3.3, and 8.4(c). Finding the Rule 375(a) willfulness standard met, the court ordered McClure "to show cause as to why sanctions should not be entered against him," with a response due within 21 days (paragraph 69; the summary and the conclusion instead order "appellee to show cause as to why sanctions should not be entered against her"), and stated that "[s]hould we find sanctions are warranted, we will issue a separate written order imposing the sanction." No sanctions ruling appears in the order. The court separately found the appellant's brief grossly noncompliant with the appeal rules, including a quotation that does not appear in the cited Miller decision. It found that appellant's counsel, David Reid, violated Rules 8.4(c) and 1.1 but declined a further sanction "as he has already been sanctioned," and it cautioned him against invoking his former judicial position in filings.

Why does In re Estate of Ruth M. Gerdes matter for law firms using AI?

The Second District’s order is a merits win for the appellee that carries a sanctions proceeding arising from the appellee’s brief. Before reaching the appeal, the court addressed the appellee’s brief and found that “it appears as though numerous fictitious authorities were cited,” which “led us to believe appellee’s attorney used generative artificial intelligence (AI) to draft his brief.” It then walked through five citations one by one. Several followed a recognizable pattern: a real case name attached to the wrong district or court (a First District Fernandez cited as Second District, a Third District McHenry cited as Second District, an Illinois Supreme Court Shelton cited as a Second District decision), with the brief attributing propositions or facts the real case does not contain.

The court was careful about what it did and did not decide. It did not make a definitive finding that AI was used, framing it as belief and saying counsel “apparently” used it; it said the citations “may have been generated by artificial intelligence” and rested its analysis on the signature: “Mr. McClure signed and filed the brief that contained them.” It quoted the Illinois Supreme Court Policy on Artificial Intelligence for the rule that “[a]ttorneys, judges, and self-represented litigants are accountable for their final work product,” and added that “the policy does not prohibit the use of AI; it holds attorneys accountable for what he or she files.” It called citation to the fictitious authorities “egregious and unacceptable” and said “[c]ompetence in the age of generative AI carries with it the basic obligation to verify that the authorities the technology produces are real and stand for what they are cited to support.”

The procedural posture is open. The court found willfulness under Rule 375(a), reading “willful” to include “inexcusable carelessness” as the Fourth District did in In re Baby Boy, and ordered a response within 21 days, reserving any sanction for a separate written order. The order names Mr. McClure as the respondent in paragraph 69 but directs the rule to the appellee in its conclusion. Firms documenting compliance may wish to consider that in this order the Rule 341 briefing violations and the Rule 375 show-cause rested principally on the citations themselves, while the Rule 1.1 competence finding also pointed to counsel “apparently failing to educate himself on the risks associated with the emerging technology of generative AI.” The court’s statements about AI use were framed as belief, not as a finding.