U.S. Court of Appeals for the Fifth Circuit — Proposed Rule on AI

In 2023–2024 the Fifth Circuit proposed an amendment to its local rules that would have required attorneys to certify whether generative AI was used to draft any portion of a filing and to confirm that any AI-generated content had been reviewed for accuracy by a human. The proposal was published for comment, drew significant pushback, and was withdrawn for revision. It remains the most-litigated federal proposal on AI disclosure and a useful study in how a federal circuit handles AI rulemaking under public scrutiny.

What the proposed rule said

• Attorneys would have been required to file a certification with every brief addressing whether generative AI was used in drafting.
• If AI was used, the certification would have required that the attorney verified the AI-generated content was accurate and that all citations were checked.
• The duty would have run to lead counsel, regardless of who actually used the tool.

Why it was withdrawn

The public comments raised three recurring concerns:

1. Overinclusion. The proposal would have required disclosure for ordinary uses (grammar checking, spell check, search auto-complete) that no one understood to be the rule's target.
2. Redundancy. Rule 11 and the duty of candor under the Rules of Professional Conduct already prohibit filing false or unverified material.
3. Definitional problem. "Generative AI" is not a stable category. A tool that summarizes a brief today may be classified as generative AI tomorrow and non-generative the day after.

What replaced it

The Fifth Circuit elected to rely on existing authority — Rule 11, candor to the tribunal, the duty of competence — rather than a bright-line disclosure mandate. The court signaled that sanctions for AI hallucinations would continue to issue under existing rules, which they have.

Why it still matters

Even though withdrawn, the Fifth Circuit proposal is the most-cited federal artifact in the disclosure debate. Other circuits have studied the comment record before declining to adopt similar rules. The withdrawal is itself a data point: federal rulemaking has, so far, converged on responsibility over disclosure, the same posture Illinois and Ohio adopted at the state level.

Practitioner takeaways

• Federal AI sanctions continue to issue under Rule 11 — the absence of a disclosure rule does not lower the verification floor.
• Check each individual federal judge's standing order before filing; many adopted Starr-style rules independently of the circuit.
• If you participate in future federal rulemaking, the Fifth Circuit comment record is the best primer on the practical objections to disclosure mandates.

Source materials for the proposed rule and comment record are available at the link above.