Previously I have written about the ethical and practical issues involved in lawyers’ plagiarism. See also Copycat – Further Thoughts. Professor Douglas E. Abrams, of the University of Missouri School of Law, has written an interesting article on issues raided by lawyers’ plagiarism, “Plagiarism in Lawyers’ Advocacy: Imposing Discipline for Conduct Prejudicial to the Administration of Justice,” which is due out next year in the Wake Forest Law Review. For now, a draft is available from the Social Science Research Network for download.
Abrams details some recent cases in which counsel were chastised for copying published material, prior judicial opinions, and other counsel’s briefs. There is still a lot of gray areas. Abrams does not deal with legal forms. However flattering it is for judges to adopt language from lawyers’ briefs, is it plagiarism for them to do so? Does a judge commit plagiarism by adopting language wholesale from a lawclerk’s draft? Does a senior lawyer commit plagiarism by leaving off the names of junior lawyers and lawclerks, who contributed portions of the brief? Does it matter if the senior lawyer’s writing is an article for publication rather than a brief to the court? If a lawyer takes language from another’s brief, and uses it in an article, does she commit plagiarism? If a lawyer discovers plagiarism committed by another lawyer, is there an ethical obligation to report the plagiarizer?
