Copycat – Further Thoughts on Plagiarism in the Law

Lynn Gates, of Smith, Murphy & Schoepperle LLP, pointed me to a recent article in ABA Mobile about an Iowa lawyer who reprimanded for submitting a brief in which large blocks of language and research were copied from a law review article.  Weiss, “Iowa Lawyer Reprimanded for Plagiarizing Bankruptcy Brief” (Oct 18, 2010).

The ABA article reports on a recent case, filed October 15, 2010, by the Supreme Court of Iowa, Iowa Supreme Court Attorney Disciplinary Board v. Cannon, which held that wholesale copying from a law review article was sanctionable and upheld a public reprimand of the offending lawyer for dishonesty or mispresentation toward the court. 

The gravamen of the complaint against the Iowa lawyer was that the lawyer copied large segments of a law review article into a brief he filed with the court.  The court preferred charges after finding that the lawyer’s briefs were of an “unusually high quality.”  The disciplinary board found that the lawyer’s conduct involved dishonesty and misrepresentation toward the court, and that the lawyer’s fee for writing the brief was unreasonable and excessive.  The lawyer had billed 25.5 hours for preparing the briefs.  The Grievance Commission agreed that the attorney had plagiarized, but not that the attorney had charged an excessive fee.  The Commission was apparently mollified by the lawyer’s having refunded his fee to the client, but nonetheless recommended a six-month suspension from practice. On review, the Iowa Supreme Court affirmed the finding of plagiarism, but concluded that a public reprimand was the appropriate sanction.

What are the lessons to be drawn from this interesting case?

First, and foremost, don’t plagiarize from well-written, well-researched law review articles.

Second, think twice about writing briefs of unusually high quality unless this is your regular practice and your clients can afford the quality.

Third, the board’s fixation on the excessive and unreasonable fee seems misplaced.  On appeal, the excessive fee charge evaporated in large measure because the lawyer had already refunded his fee.  There was no discussion whether the 25.5 hours billed was the actual time taken to find the relevant law review article, plagiarize it, and prepare the brief with the offending plagiarism.  If so, the time would have been honestly reported and not necessarily excessive.  We can only imagine how much more time the lawyer might have required to write the brief from scratch, and the client may well have benefitted substantially from the plagiarism.  The excessive fee charge seems not to fit the deed at all.

Fourth, copyright was never discussed.  Curiously, none of the tribunals involved appeared concerned about copyright infringement.  The Iowa Supreme Court never mentioned that passing off language and research as one’s own might be a copyright infringement, and that the lawyer should be sanctioned for violating federal copyright law. Surely the law review article that contributed such high quality to the lawyer’s brief had been infringed by the lawyer.

In my earlier post on plagiarism, I was not suggesting that law schools did not recognize and punish plagiarism.  Academic standards for plagiarism exist in law schools, although the definitions of plagiarism and the academic sanctions vary.  See Legal Writing Institute, “Law School Plagiarism v. Proper Attribution, A Publication of the Legal Writing Institute” (2003) (surveying law school policies and finding them often poorly defined, inconsistent, and contradictory); see also LeClercq, “Failure to Teach: Due Process and Law School Plagiarism,” 49 J. Leg. Educ. 236 (1999).

Plagiarism within law firms is another matter.  My own experience with “legal” plagiarism goes back to my work as a summer associate.  A partner for whom I was working asked me to research and write a manuscript on a topic of interest to him.  I told him that I would gladly do so, but that I expected to be noted as an author.  The partner told me that he would acknowledge my research contributions in a footnote, but that full authorship status was not appropriate for a student researcher.  The partner made it clear that the article would be for promotional purposes, and as a mere summer associate, my participation did not require authorship status.  I was stunned that the actual writer would not be also promoted as knowledgeable in the topic of the article, but my naiveté soon wore off.  I admit that my reaction was passive aggressive:  I put the research project at the end of my summer’s assignments, and somehow I never managed to get to do the research and writing for that partner.  In the long term, my reaction was more positive:  when I asked an associate to research a topic on which I wanted to write, I gave that associate authorship status if I used any part of the research or writing. Still, I was surrounded by lawyers, and even some partners, who held out writings that were ghost written by associates, law clerks, interns, and the like.  There is a lot of such intellectual slavery in law firms.

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