2025 UT App 80

THE UTAH COURT OF APPEALS

MATTHEW GARNER,
Petitioner,
v.
KADINCE, INC.; JARED HALES; AND AARON VENEZIA,
Respondents.

Per Curiam Opinion

No. 20250188-CA
Filed May 22, 2025

Third District Court, Salt Lake Department

The Honorable Mark Kouris
No. 210906879

Douglas M. Durbano and Richard A. Bednar,

Attorneys for Petitioner
Gregory M. Saylin, Kody L. Condos, and Olivia
Cronquist, Attorneys for Respondents
Matthew C. Barneck, Attorney for Order to Show
Cause Respondents Douglas M. Durbano and
Richard A. Bednar

Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN

FORSTER, and AMY J. OLIVER.

PER CURIAM:

¶1 This matter is before the court on its Order to Show Cause

(OSC) as to why Douglas M. Durbano and Richard A. Bednar
(Petitioner’s counsel) should not be sanctioned or why other
disciplinary action should not issue. The court, having reviewed
the filings and heard from the parties at the April 22, 2025 OSC
hearing, finds that Petitioner’s counsel violated rule 40 of the Utah
Rules of Appellate Procedure and imposes sanctions.
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BACKGROUND

¶2 Petitioner’s counsel filed a timely petition for interlocutory

appeal (the Petition). Respondents’ counsel filed a timely
opposition to the Petition. In the opposition to the Petition,
Respondents’ counsel identified multiple cases cited by
Petitioner’s counsel that were miscited or appeared to have been
created by artificial intelligence (AI). Respondents’ counsel noted,
“it appears that at least some portions of the Petition may be AI-
generated, including citations and even quotations to at least one
case that does not appear to exist in any legal database (and could
only be found in ChatGPT[1]) and references to cases that are
wholly unrelated to the referenced subject matter.” As the
primary example, Respondents’ counsel pointed to the citation to
“Royer v. Nelson, 2007 UT App 74, 156 P.3d 789” as an AI
“hallucinated” case that does not exist anywhere other than on
ChatGPT. 2

¶3 Concerned that the Petition contained citations to non-

existent and inapposite cases, this court ordered Petitioner’s
counsel to appear and show cause why they should not be
sanctioned. In a filing titled “Petitioner’s Request to File Amended
Petition for Permission to Appeal an Interlocutory Order,” 3

1. ChatGPT is an AI chatbot that uses natural language processing

to create humanlike conversational dialogue. The language model
can respond to questions and compose various written content.

2. An AI hallucination “occurs when an AI database generates

fake sources of information,” which appear to be accurate. See
Wadsworth v. Walmart Inc., 348 F.R.D. 489, 493 (D. Wyo. 2025).

3. Our ruling on the Petition and on Petitioner’s Request to File

Amended Petition for Permission to Appeal an Interlocutory
Order is set forth in a separate order issued on the same date as
this opinion.

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Petitioner’s counsel acknowledged “the errors contained in the

Petition” and apologized to both this court and Respondents’
counsel. Petitioner’s counsel also offered “to make amends” by
paying Respondents’ attorney fees incurred in responding to the
Petition, and they stated that they would appear at the OSC
hearing.

¶4 On April 22, 2025, Petitioner’s counsel appeared at the OSC

hearing along with Petitioner. Petitioner’s counsel was
represented by Matthew C. Barneck for the limited purpose of the
OSC proceeding. Respondents’ counsel also attended the hearing
but did not address the court.

¶5 Petitioner’s counsel acknowledged that the Petition

contained fabricated legal authority, which was obtained from
ChatGPT, and they accepted responsibility for the contents of the
Petition. Petitioner’s counsel explained that the Petition had been
prepared by an unlicensed law clerk, employed by their law firm,
who used ChatGPT in the drafting of the Petition. Mr. Durbano
was not involved with the drafting of the Petition and Mr. Bednar
did not independently check the accuracy of the Petition before
signing and filing it with the court. Petitioner’s counsel were not
aware that the law clerk was using ChatGPT in the preparation of
their firm’s legal work, and they acknowledged that the use of AI
had not been previously addressed at their firm, either formally
or informally. Petitioner’s counsel explained that their law firm
did not have any policy in place addressing the use of AI but that
they had initiated one since receiving notice of the OSC
proceeding.

ANALYSIS

¶6 The use of AI in the preparation of legal filings has not been

previously addressed by Utah courts. For guidance, this court
looks to other jurisdictions that have addressed the use of AI in
legal filings involving fake legal precedent. One of the seminal

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cases cited by other jurisdictions in this developing area of law is

Mata v. Avianca, Inc., 678 F. Supp. 3d 443 (S.D.N.Y. 2023). In Mata,
the court noted, “[T]here is nothing inherently improper about
using a reliable [AI] tool for assistance. But existing rules impose
a gatekeeping role on attorneys to ensure the accuracy of their
filings.” Id. at 448.

¶7 As is most likely common knowledge in this profession,

“[l]egal research has improved over time, going from the use of
digest books to online databases like Lexis and Westlaw.”
Wadsworth v. Walmart Inc., 348 F.R.D. 489, 493 (D. Wyo. 2025). And
now, “[l]itigators are beginning to make the jump from those
databases into the world of [AI].” Id. “When done right, AI can be
incredibly beneficial for attorneys and the public.” Id. “However,
the current state of AI has its shortcomings.” Id. The legal
profession must be cautious of AI due to its tendency to
hallucinate information. See id. While technology continues to
evolve, attorneys must verify each source cited in their legal
filings and “must still read the case to ensure the excerpt is
existing law to support their propositions and arguments.” Id.
And as “attorneys transition to the world of AI, the duty to check
their sources and make a reasonable inquiry into existing law
remains unchanged.” Id.

¶8 We agree that the use of AI in the preparation of pleadings

is a legal research tool that will continue to evolve with advances
in technology. However, we emphasize that every attorney has an
ongoing duty to review and ensure the accuracy of their court
filings. In the present case, Petitioner’s counsel fell short of their
gatekeeping responsibilities as members of the Utah State Bar
when they submitted a petition that contained fake precedent
generated by ChatGPT.

¶9 Rule 40 of the Utah Rules of Appellate Procedure provides

for the sanction and discipline of attorneys and parties at the
appellate level. See Utah R. App. P. 40. Rule 40 is the counterpart

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to rule 11 of the Utah Rules of Civil Procedure, which provides for

the sanctioning of attorneys and parties at the trial level, see Utah
R. Civ. P. 11(c). Rule 40(b) provides, in relevant part, that the
“signature of an attorney . . . certifies that to the best of the
person’s knowledge formed after an inquiry reasonable under the
circumstances . . . the legal contentions are warranted by existing
law.” See Utah R. App. P. 40(b). Rule 40(c) provides that this court
may sanction and discipline attorneys and parties “after
reasonable notice and an opportunity to show cause to the
contrary” for failure to comply with the court rules or any order
of the court. See id. R. 40(c).

¶10 Here, the Petition failed to comply with rule 40. A fake
opinion is not “existing law” that can support a party’s legal
contention. Id. R. 40(b)(2); see also Mata, 678 F. Supp. 3d at 461 (“A
fake opinion is not ‘existing law’ and citation to a fake opinion
does not provide a non-frivolous ground for extending,
modifying, or reversing existing law, or for establishing new
law.”). And the signature of Mr. Bednar on the Petition served to
“certif[y] that to the best of [his] knowledge formed after an
inquiry reasonable under the circumstances,” the “legal
contentions are warranted by existing law.” Utah R. App. P. 40(b).
Mr. Bednar admits that he failed to comply with rule 40. 4

¶11 “Many harms flow from the submission of fake opinions.

The opposing party wastes time and money in exposing the
deception.” Mata, 678 F. Supp. 3d at 448 (footnote omitted).
Judicial resources are diverted from other pressing, legitimate

4. We also considered whether Petitioner’s counsel violated rule

3.3 of the Utah Rules of Professional Conduct. Although
Petitioner’s counsel made “a false statement of . . . law to a
tribunal,” we find that their conduct fell short of the level of intent
required by the rule. See Utah R. Pro. Conduct 3.3(a) (“A lawyer
must not knowingly or recklessly: (1) make a false statement of
fact or law to a tribunal . . . .”).

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work. And “[t]he client may be deprived of arguments based on

authentic judicial precedents.” Id.

¶12 Although the court appreciates Petitioner’s counsel’s

acceptance of responsibility for their conduct, filing pleadings or
other legal documents without taking the necessary care in their
preparation is an abuse of the judicial system and subject to
sanctions. See id. at 460. This court takes the submission of fake
precedent seriously and finds that sanctions are warranted.

¶13 In considering appropriate sanctions, this court is

cognizant that the circumstances here are different from some
other cases addressing AI-generated fake precedent. In Mata, the
attorneys initially misled the judge after discovery of the fake
precedent, and they continued to claim that the cases were real.
See id. at 449 (noting the attorneys did not admit their reliance on
AI-generated fake precedent for nearly three months). In United
States v. Hayes, No. 24-cr-0280, 2025 WL 235531 (E.D. Cal. Jan. 17,
2025), the attorney continued to claim that the fake precedent was
simply an “inadvertent citation error.” Id. at *10. Petitioner’s
counsel’s conduct has not been similarly egregious, and they have
accepted responsibility for their misrepresentations to this court.

¶14 However, regardless of Petitioner’s counsel’s contrition,

harm was done as a result of their acts. Respondents’ counsel were
required to expend additional resources researching the citations
and source of the hallucinated legal authority. Valuable judicial
resources were diverted from considering pending cases to
addressing Petitioner’s counsel’s misrepresentations.

¶15 Opposing counsel cannot be required to independently

verify the veracity of each citation in another’s court filings. And
Utah courts cannot be charged with independently checking the
veracity of each citation in an attorney’s filings. Our system of
justice must be able to rely on attorneys complying with their duty
of candor to the court.

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CONCLUSION

¶16 This court has considered the specific circumstances of this

case and reviewed sanctions imposed by other jurisdictions for
citing hallucinated authority. We believe that sanctions are
appropriate here because Petitioner’s counsel failed to meet their
obligations under rule 40 of the Utah Rules of Appellate
Procedure. But we are mindful that Petitioner’s counsel admitted
their violation and accepted responsibility. Therefore, we order
the following sanctions:

(1) Mr. Bednar shall pay the attorney fees of

Respondents for the time spent responding to the
Petition and attending the OSC hearing; 5

(2) Petitioner’s counsel shall refund to Petitioner all

fees charged and paid for the filing of the Petition or
related thereto within seven days of the date of this
order; 6 and

(3) Mr. Bednar shall pay $1,000 in the form of a

donation to “and Justice for all” within fourteen
days of the date of this order and file proof of
payment with this court.

5. Respondents’ counsel are ordered to provide an itemized

statement (redacted as appropriate) to Mr. Bednar for the time
spent responding to the Petition and attending the OSC hearing
within ten days of the date of this order. Mr. Bednar shall pay the
fees within ten days of receiving the statement.

6. If bills have not yet been submitted or paid for all such work,
then Petitioner’s counsel shall refrain from submitting them or
collecting on them.

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 CERTIFICATE OF MAILING

I hereby certify that on the 22nd day of May, 2025, a true and correct copy of the attached
OPINION was sent by standard or electronic mail to be delivered to:

DOUGLAS M. DURBANO
RICHARD A BEDNAR
DURBANO AND ASSOCIATES
[email protected]
[email protected]

KODY LYNN CONDOS

CLYDE SNOW & SESSIONS
[email protected]

GREGORY SAYLIN
OLIVIA CRONQUIST
HOLLAND & HART LLP
[email protected]
[email protected]

MATTHEW C BARNECK
RICHARDS BRANDT
[email protected]

HONORABLE MARK S. KOURIS

THIRD DISTRICT, SALT LAKE

THIRD DISTRICT, SALT LAKE

ATTN: CHERYL AIONO
[email protected]

TRIAL COURT: THIRD DISTRICT, SALT LAKE, 210906879

APPEALS CASE NO.: 20250188-CA