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Attorney Sanctioned for Plagiarizing Article in His Brief:

Among other things, the court held that even copying a long string citation, including the parentheticals, constituted plagiarism. Also, the court's reasoning would seem to apply to copying from others' briefs as well as to copying from others' articles.

In support of his argument for removal of counsel, Mr. [Peter] Cannon, on behalf of his client, filed an eighteen-page brief titled "Defendants (sic) Brief in Support of Removal of Attorneys for the Trustee" on November 3, 2006 .... On November 17th, Defendant filed a nine-page post-hearing brief titled "Defendants (sic) Post Hearing Brief in Support of Removal of Attorneys for Trustee." Mr. Cannon, as counsel for Defendant, signed both briefs....

Seventeen of the nineteen total pages in the pre-hearing brief are verbatim excerpts from the Article [Why Professionals Must Be Interested in "Disinterestedness" Under the Bankruptcy Code, by William H. Schrag and Mark C. Haut of Morgan, Lewis & Bockius LLP]. Mr. Cannon added some introductory material, a one-page section titled "Argument," and a conclusion. In between the introduction and argument, most of the first twenty pages of the Article are reproduced verbatim [without attribution]....

While Mr. Cannon's post-hearing brief contains more original material than his pre-hearing brief, it still continues to borrow heavily from the Article. Mr. Cannon wrote much of the brief's text, but reproduced string citations from the Article for supporting authority. The citations he selected are presented in the same order in which they appear in the Article, with the same parenthetical explanations. Aside from these reproduced citations, Mr. Cannon did not add any case law in support of his position.... Mr. Cannon ... takes the position that the act of copying citations was not plagiarism....

It is a violation of the Iowa Rules of Professional Conduct for an attorney to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Iowa Rules of Prof'l Conduct R. 32:8.4. Plagiarism, which is "[t]he deliberate and knowing presentation of another person's original ideas or creative expressions as one's own," Black's Law Dictionary (8th ed. 2004), is a form of misrepresentation. Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. Lane, 642 N.W.2d 296, 300 (2002); accord In re Lamberis, 443 N.E.2d 549 (Ill. 1982) (finding plagiarism constitutes deceit under Illinois Code of Professional Responsibility); cf. United States v. Jackson, 64 F.3d 1213, 1219 n.2 (8th Cir. 1995) (disapproving of a brief that "directly track[ed]" a circuit court opinion which the attorney did not cite)....

[A]t least one court has found that reproducing material consisting primarily of citations is in fact plagiarism. See Frith v. State, 325 N.E.2d 186, 188 (Ind. 1975) (attorney who reproduced more than ten pages of an American Law Report in his brief committed plagiarism).... The particular citations appropriated by Mr. Cannon list dozens of cases, and provide a quote or synopsis for each case that explains its relevance to the authors' argument. By passing off these citations as his own, Mr. Cannon plagiarized Schrag and Haut's ideas and expressions just as surely as if he had copied an equivalent amount of text....

Mr. Cannon's acts of plagiarism burden the Court, undercut his client's cause, and generate criticism of the legal profession. Moreover, parroting a scholarly article in this way is not an effective type of advocacy. See Frith, 325 N.E. 2d at 189. More fundamentally, Mr. Cannon's disregard for the true authors' property rights in their ideas reveals a lack of integrity that reflects poorly on the legal profession. Lane, 642 N.W.2d at 300; Lamberis, 443 N.E.2d at 551. The egregiousness of Mr. Cannon's conduct requires an appropriate sanction....

Because Mr. Cannon does not appreciate the nature of plagiarism, a continuing education class will not cure his ethical shortcomings. Mr. Cannon's deficiency calls for the more-involved method of instruction offered in a law school course on professional responsibility. Mr. Cannon may complete the course at an accredited law school or arrange for private instruction from a professor of one of these institutions.

In re Burghoff (S.D. Iowa Aug. 21) (some citations omitted). Thanks to David Shemano for the pointer.

PLR:
Now there's a slippery slope for you.

Suppose the best argument, or perhaps only argument, in favor of my client's position is an argument that has already been articulated with supporting cases cited? Which has more impact, an impassioned brief making that point, or a brief consisting of a long quotation with a cite to an article (and not much else)?

What is the mechanism for policing this failing? Is it the judge's duty to check the briefs for originality? Should my opposing counsel be checking my work in case my plagiarism (or the judge's disapproval of my plagiarism) might improve the merits of my opponent's legal case?
9.7.2007 2:37pm
jfalk:

Mr. Cannon's acts of plagiarism burden the Court, undercut his client's cause, and generate criticism of the legal profession. Moreover, parroting a scholarly article in this way is not an effective type of advocacy.

The last point may or may not be right, but I fail to see how it burdens the court, undercuts the client's cause or generates criticism of the legal profession. As to burdening the court, merely citing the original article would burden the Court equally by obliging them to read it. (Or is the court saying they wouldn't be bothered?) On the assumption that Mr. Cannon charged quite a bit less for this than he would have for his own argument, the client's financial interest was served so long as the argument was apposite. We don't let students plagiarize because we want them to learn something other than [Ctrl]c and [Ctrl]v. We don't let authors plagiarize things because we value the originality of thought directly. But arguments at law need not be original. Indeed, the less original they are the more persuasive they are likely to be, I'd think.
9.7.2007 2:43pm
PaulD:
The sanction is especially interesting.

Can we apply this standard to appellate court opinions as well?

It sounds like the copying at issue here was particularly egregious, but the dictum to the effect that even unsourced copying of a string citation is plagiarism seems a bit extreme, and raises a slew of problems, some of them identified by PLR above.
9.7.2007 2:46pm
Eugene Volokh (www):
PLR: There's no problem with quoting another's work -- the plagiarism comes in quoting it without attribution.
9.7.2007 2:46pm
Anderson (mail):
Let's just say, if *I* hire an attorney to handle my case, I do not want his brief to be a plagiarized article with a tacked-on intro and conclusion.

(Leaving aside the dubious notion that there was ever a law-journal article written that a practitioner couldn't summarize more effectively for his particular case ... present Conspirators excluded, of course!)
9.7.2007 2:51pm
DCL (mail):
Yes -- but the court has gone too far here. Coopting a string citation of cases is now plagiarism? What about using material previously written by others in a firm in prior briefs?
9.7.2007 3:01pm
wm13:
I think this court is way off base and is importing norms of scholarship into an area where they have no relevance.

What might happen to all those judges who tell counsel to write an order and they will sign it? What about an appellate court which finds a brief convincing and uses some of its phraseology in its opinion?

Does this apply to loan documents? I always try to copy from prior loan documents and so does every lawyer I know. Pace Anderson, if an associate tried to write several pages from scratch, I'd be very annoyed, because he or she would be running up time (remember, we charge by the hour) to no purpose.
9.7.2007 3:01pm
Brad Ford (mail):
Many law firms have standard language for common motions complete with citations.

Is an attorney at one firm required to cite the work of another attorney at the same firm?
9.7.2007 3:02pm
Bruce Hayden (mail) (www):
Let's just say, if *I* hire an attorney to handle my case, I do not want his brief to be a plagiarized article with a tacked-on intro and conclusion.
I think that there are a couple of issues here. The most notable one being dishonesty, and with that one, I agree.

But when it comes to the client's benefit, a plagiarized brief, article, etc. may be advantageous - if the attorney is honest about what he charges his clients.

For example, let us assume that an attorney can write a brief from scratch in ten hours or plagiarize it from someone else's for two hours of work. I would sugest then that the client is typically better off if his attorney plagiarized AND only charged for the amount of work actually done, in this case two hours of work. So, at $100 an hour, the difference would be the client paying $1000 for the original version or $200 for the plagiarized version.

Of course, the attorney's temptation is inevitably to charge the client for how much it would have taken to write the article from scratch (in this case $1000), even if it took much less time due to the plagiarism. But that brings us back to honesty...
9.7.2007 3:03pm
Happyshooter:
What the hell?

All appellate court opinions around here would be plagiarism under that standard.
9.7.2007 3:09pm
Anderson (mail):
if the attorney is honest about what he charges his clients.

That was my other question.

But, come on, folks -- you can't possibly be zealously representing your client while submitting an article as your "brief," any more than you could if you just handed the court some cases printed off Westlaw and said "read these, Judge, and that's my argument."

It's applying the rule to the facts that wins the case.
9.7.2007 3:17pm
AF:
How cool would it to be sanctioned for plagiarizing a Supreme Court opinion?
9.7.2007 3:17pm
DJR:
This is ridiculous. Briefs are not "creative expressions" in the same way that books or articles are, and need not have any "original ideas." There should be no presumption that the attorney who signs the brief is professing either that it is the product of his own creative expressions or original ideas.

For example, let's say my partner and I represent two different clients in two different courts against the same defendant with materially identical facts. The defendant files the same motion to dismiss on qualified immunity grounds in both cases, and my partner files what I believe (based on my knowledge of the law and independent research) to be a perfect opposition brief. My brief is not due until a week later, so I file the identical brief under my name with my partner's permission. Doing this in college (with term papers on the same subject for different profs) would get me disciplined or expelled. Should I be required to write a different brief just so that I don't plagiarize my partner's brief? Or should I be required to note somewhere that the brief was actually written by my partner for another case? Of course not. It matters not one whit who came up with the turn of phrase or string cite in pleadings.

If the rule were otherwise, there are hundreds of judges who will need to start citing the bench memos and draft briefs written by their clerks so as not to intentionally pass off their "creative expressions" and "original ideas" as their own.
9.7.2007 3:20pm
Bryan Gates (www):
A legal brief is fundamentally different from a piece of original scholarly writing. It is a means of persuading a court that a particular interpretation of the law is correct. Under the the typical university plagiarism standard, it would be wrong to assign someone else prepare a first draft, edit it and then submit the work as your own. Preparing first drafts for others' signature is the bread and butter of law firm associates and judicial law clerks. Is it plagiarism for a lawyer to sign a brief where an associate was a principal drafter? What about a well-known lawyer who signs an amicus brief he had minimal input in? What about an appellate judge who signs an opinion that a law clerk of staff attorney prepared?

After winning a motion hearing, North Carolina attorneys are routinely required to prepare orders containing findings of fact and conclusions of law that the judges then sign. Under this court's holding that would be plagiarism.

The part about plagiarizing string cites seems troubling. Assuming a lawyer reviewed the cited cases, why is it necessary to reorder the citations? Do you provide a citation for the list of citations?

I think the court went a lot further than it needed to in order to sanction some dishonest actions. Under most any reasonable standard what the lawyer did there was dishonest. He copied a scholarly article without attribution and billed a client 25.5 hours for doing it. The court should have sanctioned him on that basis and left the broad pronouncements for another day.
9.7.2007 3:23pm
Daniel San:
I can think of much less egregious cases that would be plagiarism under this standard. An attorney in another firm is dabbling in an area in which I have substantial experience and asks me for a form Motion; we both know very little will be changed. I am briefing an issue that I know a friend has researched and ask for a Memorandum or Brief, then cut and paste entire paragraphs (likely with slight changes in phrasing). I need to draft Motion and ask the Clerk of Court to let me copy from a file dealing with a similar issue, then use a Motion I find with minor changes. These are all real situations. Clients shouldn't have to pay us extra just to satisfy someone's notion of originality.

As for the sanction, how much is someone going to learn about plagiarism in a law school ethics course?
9.7.2007 3:23pm
Tony Tutins (mail):
I like the way this judge thinks, and in fact lawyers should be required to cite different cases every time they make a same or similar argument. This would clash with the lawyer's duty to cite controlling authority in the particular jurisdiction, but what the hey. The overarching goal is that every pleading should be an original work of authorship.
9.7.2007 3:24pm
Justin (mail):
I agree. This is an absolutely atrocious decision. It puts the attorney before the client. The brief should be based on its merits, no matter where it came from or what it cites, so long as its not stating anything false or deceptive.
9.7.2007 3:26pm
Justin (mail):
I should point out that the other two questions - one of ripping off clients and the other of zealous representation - are absolutely legitimate. But those would be true even if he was "plagiarizing" his *own* work (indeed, there was a lawyer in the Federal Circuit who was sanctioned for that some years ago). Plagiarization can be *evidence of* such (or perhaps other) ethical violations - but it should not be an ethical violation in its own right, for the many reasons people have mentioned.
9.7.2007 3:29pm
Houston Lawyer:
And I thought the note in a draft contract saying that the contract language was copyrighted was BS. I second WM13's thought above. It is standard practice among transactional lawyers to keep the documents sent to them by opposing counsel and use them as their own on later deals. It can be a point of pride to recognize a piece of your work used by another good law firm.

When drafting securities disclosure documents, we get copies from the SEC from similar deals. Underwriters generally want you to do things just like their prior deals. We tell all young lawyers never to try to recreate the wheel.
9.7.2007 3:30pm
John (mail):
I must say this seems like a non-issue to me. It's never hard to give credit and put in a couple of quotation marks. Trying to pass off stuff as your own when it isn't your own is the offense here; there is nothing at all wrong in relying on others' arguments and reasoning as such.

The penalty is cool, however.
9.7.2007 3:33pm
scote (mail):
So, will all briefs have to be filed as manuscripts? Will council have to "show their work" as some math students have to do on exams?

Although the judge is supposedly excoriating council for a lengthy unatributed citation, he seems to be implying that all filings need to be original!
9.7.2007 3:41pm
Anderson (mail):
I am at a loss as to why so many commenters think that property rights in one's law journal article are no different from those in one' brief.

What attorneys copyright their briefs?
9.7.2007 3:42pm
Steve H (mail):
This is one of the dumbest things I have ever read.

"Plagiarism" is a non-issue in a brief, because the sole purpose for filing a brief is to persuade a court one way or another. It's not for the lawyer to say "Look at me, I'm brilliant!" If the most persuasive argument came from a secondary source, then that is the argument the lawyer should make. And if putting that entire argument in a block quote makes it less persuasive (which it would), then the attorney should just present it straight-up.

Plagiarism isn't (or shouldn't be) a concern in these matters for another reason as well. In arguing to a court, you don't want the court to think that your position is a novel one that you made up yourself. You want the court to think that your position is the one backed up by the authorities. So you actually have the incentive to "reverse plagiarize."

As someone else said, that judge should be sanctioned every time he or she issues an opinion without disclosing what portions were written by his or her clerks.
9.7.2007 3:55pm
wm13:
But, Anderson, you are now talking about copyright, which is only tangentially related to plagiarism. In school, it is plagiarism even if you buy a paper from the author, and it is plagiarism even if you submit something that is in the public domain as your own. And incidentally, for those who think that referring to the original source would solve the problem, it is plagiarism to use the words of another even if you credit your source. (This is basically what Martin Luther King and Doris Kearns Goodwin did.) As I said, these are scholarly norms, which are wholly inapposite in a professional setting. Basically, the three sets of rules (academic, legal i.e. copyright, and professional) have only the vaguest relationship to each other, which is why this opinion seems very misguided.
9.7.2007 3:58pm
PLR:
Quoting Eugene (while trying to stay in my depth here):

"PLR: There's no problem with quoting another's work -- the plagiarism comes in quoting it without attribution."

But the judge is talking about plagiarism, which in the world of publishing includes not just direct copying but the gray area of extensive paraphrasing of another's writings without attribution. I will concede that it is unlikely my best argument for a client would be a verbatim cut-and-paste of an article that was written for purposes of analysis, rather than advocacy.

I agree with the comment at 2:29, and I also had the same thought as in 2:03. I don't think my client is well served in paying fees for lawyer time devoted only to complying with imprecise principles of ethics from another field.
9.7.2007 4:02pm
tbaugh (mail):
Nevermind copying from the clerks, I've seen many judicial opinions (especially "unpublished" ones) that have sentences and even paragraphs straight from the briefs. And I've never thought anything about it (I do agree that one shouldn't just copy law review articles, and should attribute material used, but calling this sanctionable plagiarism seems off).
9.7.2007 4:08pm
Anderson (mail):
wm13, I brought up copyright to give one example of how our IP expectations are different with articles and with briefs.

The bottom line is that the attorney behaved unprofessionally. He did not do the best work he could for his client. And he falsely took credit for ideas that others not only *wrote*, but *published* under their own name in the expectation that their intellectual rights would be respected.

(All that being said, the penalty was a bit much, and silly. No one learns anything in those stupid classes. He should've just fined the guy $500 or somesuch.)
9.7.2007 4:12pm
Bryan DB:
It doesn't look like the string cites themselves were the problem (although they didn't help); those string cites also included commentary on the case. If you cut and paste a series of citations, you're representing you did the work when someone else actually did; <i>maybe</i> you could make the argument that you just found the same cases. But when you include the exact same commentary from the string, that argument just doesn't fly.

"The particular citations appropriated by Mr. Cannon list dozens of cases, <b>and provide a quote or synopsis for each case that explains its relevance to the authors' argument.</b>"
9.7.2007 4:24pm
Joe Hiegel:
The most pressing question, of course, is whether the attorney's putative plagiarism is really more pernicious and worthy of sanction than the judge's misspelling de minimis.
9.7.2007 4:25pm
CJColucci:
Some years ago, a judge granted summary judgment in a case of mine using my brief almost verbatim (s/he required Wordperfect floppies -- remember floppies?) as the opinion. Somehow, a few of the argumentative headings were not excised, which would clue in someone who hadn't seen the brief that the judge was cut- and- pasting a brief. No complaints here. My supervisor had not liked some feature of the brief -- I forget what -- and was preparing to have me yelled at by our supervisor for submitting it anyway when the "opinion" came down relying in large poart on the portion s/he objected to.
9.7.2007 4:26pm
Tony Tutins (mail):
Well, my law school failed me then. In Legal Writing they told us we could use the arguments and citations in an unpublished opinion, we just couldn't cite to it. Under this new anti-plagiarism guideline, we can't make any use of unpublished opinions at all, because we still can't cite to it.
9.7.2007 4:28pm
Tony Tutins (mail):
Bryan - if plagiarism is taboo, you can never put a case synopsis in your brief at all without attribution, because any synopsis is necessarily a paraphrase of some one else's synopsis. Thus every case cite would have to cite to two sources, one for the case from which the proposition came, and then to the case, law review article, or Westlaw/Lexis gloss that first synopsized the case.
9.7.2007 4:35pm
r78:
Courts frequently ask attorneys to submit drafts of proposed orders (containing a factual summary as well as citation to and discussion of cases) and then signs the order after crossing out the [proposed] on the cover sheet?

Plagiarism?

What if the proposed order contained a verbatim excerpt from the transcript of the court's language?
9.7.2007 4:44pm
Justin (mail):
As far as I can tell, EV hasn't made any normative comments - he's just being descriptive. I wonder if he agrees with the attitude that most practitioner-commenters here have, and if not, where his disagreement lies.
9.7.2007 4:53pm
Siona Sthrunch (mail):
Bluebook prescribes the order of citations in string cites, although many attorneys disregard its rules. That the order was the same is only significant if it deviated from Bluebook.
9.7.2007 5:06pm
tarheel:
Siona Sthrunch:

I think the issue there was that the parentheticals were copied verbatim, which might lead one to believe the lawyer had not actually read those cases himself. That would be an ethical violation.
9.7.2007 5:12pm
Bruce Hayden (mail) (www):
A little digression, but as noted there is a difference between copyright and plagiarism, All the "original work of authorship" stuff applies to copyright, not plagiarism, though, as noted, something can be one, the other, both, or none of the two.

But copyright really is an issue that is routinely overlooked. No, you don't need to put a copyright notice in your briefs. Since we joined the Berne convention, that sort of formalities are no longer necessary, and all that a copyright notice does any more (for Berne era works, which is likely most of what we are talking about) is negate a defense of innocent infringement, and innocent infringement is hard to argue under Berne anyway, given automatic copyright protection.

But briefs and the like are often protected by copyright, from the time of creation, by operation of law. So, theoretically, one attorney could sue another for copying his brief, etc. The copyright owner would of course be in a better position to get a decent judgment if he registered the copyright, but there is often a copyright, nevertheless. And in many cases, the statutory criteria will weigh against Fair Use.

But before we all run off and start suing for copyright infringement every time someone rips off our work, keep in mind that the idea/expression dichotomy, etc. will likely require a filtering of original expression versus ideas and other unprotected matter before infringement can be found.

Thus, original text is likely protected by copyright, but not so some citations. The question would often be whether this is one of a limited number of ways to cite the relevant cases, and if so, then it is likely ok. The more leeway that an author has, the more original expression there is.

I would guess that the reason that more attorneys don't sue for their briefs, contracts, (and in my case, patent applications) is that it would appear unseemly.

Besides, much of the practice of law revolves around plagiarizing and infringing copryights as a matter of course, all in the name of not reinventing the wheel.

Let me add finally that the judge really does not have standing to bring up copyright infringement, per se, unless he is actually the copyright owner. But he does have the right to bring up plagiarism, which this judge did.
9.7.2007 5:20pm
Christopher M (mail):
Tarheel: That would be an unwarranted assumption. Let's say the lawyer found this string citation on one of the electronic research services, like Westlaw. It would be easy to click quickly on each case in the cite, bringing up a small window with the full text of the case, often pre-scrolled to the relevant portion of the opinion. You can check the citations that way. And the easiest way to get the citations into your brief is still to cut and paste from whatever source you're looking at.

Whether copying the text of a legal argument without attribution is "plagiarism" is, I suppose debatable. But the idea that copying a set of citations constitutes plagiarism is flat-out ridiculous. I did it all the time when I was practicing, I know lots of other people did too, and more to the point, there is absolutely nothing wrong with it. The citations either support your argument or they don't; requiring lawyers to move the citations into a different order or scatter them out in the new brief is just utterly ridiculous.
9.7.2007 5:21pm
law'er (mail):
Opposing counsel once copied word for word a paragraphy I had written earlier in the case, supporting an estoppel argument. I thought it was a clever touch. Plagiarism? My passage had basically paraphrased Witkin and the leading California case (with cites to those sources of course). Of course, 15 verbatim pages without a cite is a different matter.

You know, there have been about 50 patents issued on legal strategies for minimizing tax. We ought not let the phenomenon of "too much IP" infect the world of legal arguments.
9.7.2007 5:23pm
Bruce Hayden (mail) (www):
Bluebook prescribes the order of citations in string cites, although many attorneys disregard its rules. That the order was the same is only significant if it deviated from Bluebook.
In the case of my previous copyright discussion, this means that there is no original expression in an order of citation when it conforms to BlueBook rules (or to another similar standard). The order is only protected by copyright to the extent that it differs from such standard or standards, and then only if there are a significant number of ways of differing. In short, the less freedom, the less copyright.
9.7.2007 5:23pm
Guy:
"Of course, the attorney's temptation is inevitably to charge the client for how much it would have taken to write the article from scratch (in this case $1000), even if it took much less time due to the plagiarism. But that brings us back to honesty..."

That's at least part of the problem here. I skimmed the linked ruling and saw that the offending attorney had charged over $5k for ~25 hours of work. I can't imagine it taking 1/4 that time what with all the "help," but then again we head for another slippery slope.
9.7.2007 5:25pm
Realist Liberal:
Many law firms have standard language for common motions complete with citations.

Is an attorney at one firm required to cite the work of another attorney at the same firm?


I know pretty much every District Attorney's Office in California subscribes to a service put out by the San Diego DA's office. Since we write the same types of oppositions over and over, there are pre-typed up sections of law and we insert the facts and argue how they apply. It seems like under this ruling, we would have to starting citing to AutoBrief 16th Edition. Similarly, the San Francisco Public Defender's Office has a brief bank where they file every motion as boiler plate and then just argue in court.
9.7.2007 5:28pm
tarheel:
Christopher M:

Call me a cynic, but I think it is reasonable to assume that the lawyer did not read the cases when 17 of 19 pages of the brief are also copied verbatim.
9.7.2007 5:31pm
ras (mail):
Is the judge's real concern, perhaps, that he is a true partisan and it's hard to be consistent about it if he's not been told beforehand which side wants what? By not citing a source for the brief, the attorney forced this judge to risk judging from first principles and potentially end up a non-conformist w/in his chosen cohort.

Some people are like that, so I presume some judges are, too. Dunno if that's the case here, but when there's an overreaction, there's usually a reason.
9.7.2007 5:42pm
Tony Tutins (mail):
A quickie (over)simplification:
Copyright: OK to steal ideas, but must paraphrase (idea/expression dichotomy). Thin protection for thin copyrights when paraphrasing is damn near impossible:("Satisfaction guaranteed or double your money back")
Plagiarism: Not OK to steal ideas, paraphrasing won't save you, must attribute/quote.
9.7.2007 6:04pm
Grange95 (mail):
I think there is a substantive difference between sloppy citation and plagiarism. If the attorney here had merely lifted a paragraph or two and failed to block quote and cite to the source article, I think perhaps I could just chalk it up to an attorney who was a poor writer or didn't have time to put some technical polish on his brief. Here, though, the attorney apparently lifted a large amount of material, and also passed the accompanying research off as his own. The string cites themselves may not be the original author's property, but he has some interest in being given credit for finding and summarizing those cases/source materials (hence the use of the citation form, "John Doe, 'Silly Article", p. 1 (citing Smith v. Smith ...)").

As for borrowing from other attorneys' briefs and forms, I think it is a common practice which is widely accepted as legitimate. I often provide block quotes from briefs I have written to other attorneys inside and outside my firm. I certainly don't expect any attribution. However, if I should ever write an article or book, I think the expectation would be different.

Interesting point re people lifting material from my briefs. On at least three occasions, I have had a judge essentially take my brief on a substantive motion and simply cut and paste it into a ruling, changing only "Defendant contends" to "The court finds". Thankfully I didn't have to defend the runlings on appeal--not sure how I would've written the appeal brief other than to say, "As the court astutely determined ..." and then block quoted the court's ruling.
9.7.2007 6:12pm
Siona Sthrunch (mail):
tarheel,

I take umbrage at your comment, which I feel is inappropriate and should be retracted.

I pointed out that many lawyers and judges do not follow Bluebook, which prescribes citation order within string cites. I observed that a citation order compliant with Bluebook should not give rise to an inference of plagiarism.

You responded to my comment with the line "I think the issue there was that the parentheticals were copied verbatim, which might lead one to believe the lawyer had not actually read those cases himself."

Your response conveniently omits the phrase in the opinion quoted by Volokh, which specifically drew attention to the order of the cites: "The citations he selected are presented in the same order in which they appear in the Article." Obviously, the judge felt that the coincidence of ordering had significance, or he would not have mentioned it explicitly. As the opinion in question does not appear to evince a profound knowledge of other areas of legal practice, it may well be that the court did not understand Bluebook citation rules.

You also observed that the parentheticals were copied, which had nothing to do with my comment, and that the coincidence of parentheticals could give rise to an inference that the cases were not read, which is absurd.

In any case, I feel your response to my comment was misleading and superficial (like most IP comments on this blog for that matter).
9.7.2007 6:29pm
Steve:
Most of these comments strike me as quite insane.
9.7.2007 6:39pm
Daniel San:
Guy: That's at least part of the problem here. I skimmed the linked ruling and saw that the offending attorney had charged over $5k for ~25 hours of work. I can't imagine it taking 1/4 that time what with all the "help," but then again we head for another slippery slope.

You're likely right. But, have you ever had a brief take much longer than you expected. Then you look back over your work and it doesn't work. It is a that point that a shortcut looks very attractive, especially if fixing it means yet another very late night.
9.7.2007 6:43pm
Public_Defender (mail):
Has any court outside of Iowa taken such an insane position? Lawrers borrow and steal material from each other all the time. I'm on a listserv of other criminal defense lawyers, and we regularly share material. Trying to track down who wrote what first would be impossible.

When it comes to briefs, a court should have only three concerns: 1) Is the brief accurate; 2) Is the brief persuasive? 3) Did the attorney bill honestly for the time it took to write a brief?

Maybe Iowa has some weird customs, but no judge I know expects briefs to be entirely original. When I sign my name to a pleading, I am certifying that the brief is honest and accurate, not that I came up with every thought. A citation to another attorney would look laughable.
9.7.2007 6:51pm
tarheel:
Siona:

Though I am not sure what I am apologizing for, I hereby apologize for something I said. For what it's worth, the court actually said: "The citations he selected are presented in the same order in which they appear in the Article, with the same parenthetical explanations" (emphasis added). I was merely pointing out the difference between copying the form and order of a citation and copying the parenthetical description of the cited case. I, of course, agree that copying the former is not a violation, since it is proscribed. I was saying that copying the latter is different to me. I am sorry that you found my opinion inappropriate, and I hereby retract whatever it is that you found so troubling.
9.7.2007 6:54pm
Anderson (mail):
not sure how I would've written the appeal brief other than to say, "As the court astutely determined ..." and then block quoted the court's ruling.

My personal favorite is citation to opinions that I drafted as a clerk or an intern, particularly when I can quote verbatim language of mine. "Astutely determined," indeed!
9.7.2007 6:59pm
Siona Sthrunch (mail):
In support of the hypothesis that the court did not consider the fact that Bluebook (Rules 1.2 and 1.4) specifies the order of citation in string cites, I note that the opinion itself does not conform to Bluebook citation order in its own string cites. For example, in the string cite to the sentence beginning "Courts often sanction attorneys," the court incorrectly cites a District Court case from 2005 after a District court case from 1996. See Bluebook Rule 1.4(d)(4) (order of case citations).

Because (a) the court noted that the coincidence of citation order in the string cite between the alleged "infringing" or "plagiarizing" material and the original material; (b) the court did not state whether both cites were nonconforming in the same way; and (c) the court itself does not follow Bluebook citation order, it follows that if the cites were Bluebook compliant as to order, then the court likely misconstrued the significance of this fact. In that case, the opinion should be vacated: the court applied the wrong rule of law in assessing whether there was actual plagiarism.
9.7.2007 7:02pm
Q the Enchanter (mail) (www):
I wonder whether an unspoken reason behind the decision was to create an incentive for briefer briefing. By imposing a stricter policy on citation, the court is making it harder for lawyers to pad their papers with second-hand, undigested and (therefore) probably off-point material.
9.7.2007 7:05pm
Anderson (mail):
In that case, the opinion should be vacated: the court applied the wrong rule of law in assessing whether there was actual plagiarism.

Siona, it's not reversible error if it makes no difference to the result. That's why the word "reversible" is used, to distinguish mere "error."

The problem with the citations was this:

with the same parenthetical explanations

He COPIED THE FREAKIN' PARENTHETICALS. How lazy can you get? I've heard of people stealing West keynote summaries (a dangerous practice btw, West's people are good but not great), but this is worse.
9.7.2007 7:11pm
Steve:
I'm on a listserv of other criminal defense lawyers, and we regularly share material. Trying to track down who wrote what first would be impossible.

You copy materials that other people intend for you to copy. It's like copying your motion out of a form book or something. Why isn't this obviously different from a guy who copies his entire brief from a published article? It doesn't seem like a close call at all.
9.7.2007 7:13pm
Siona Sthrunch (mail):
Anderson,
The court made a number of errors in its ruling, based on its misunderstanding the plagiarism rules and customs in the legal profession, and the opinion should be reversed as a matter of law. Parentheticals are routinely copied in citations, and this practice is efficient and understood so that a lawyer is not, counter the court's belief, tantamount to averring that the lawyer crafted each parenthetical himself or herself.

However, arguing about custom and common sense in adversarial litigation is inherently difficult.

The string-cite rationale is much simpler and more clearcut. The court cannot sanction an attorney for using the same order in a string cite, when that order, unbeknownst to the court, is fully specified by Bluebook.

Thus, the court *must* review its decision and the factors that it considered in finding "plagiarism" without considering citation order. Once the court, or a higher court, reviews that decision, the decision will be reversed.

That is, the court is finding several factors, say A, B, and C, that together it claims constitutes and inference of unethical behavior. But A, as it turns out, is ethical and indeed required. Thus, the court must recompute its factors, namely B and C; in so recomputing, the court - or a higher court - is likely to rule in favor of legal custom and efficiency and find that copying parentheticals is also not sanctionable. Of course, the court might still find other factors were sanctionable.
9.7.2007 7:29pm
Hutz:
A brief is an instrument and lawyers are officers of the court. Lawyers don't (or shouldn't) file briefs as acts of self-aggrandizement. Lawyers file, and courts read, briefs for their arguments. Sure, a well-presented argument may reflect well on the lawyer who crafts it, but that's not the point. The point is that filing a brief is not about "taking credit," it is about giving the court something that may inform, clarify, or persuade.

There may be other problems with cutting and pasting an article into one's brief (e.g., the strong possibility that the attorney has ignored his Rule 11 obligations), but the court's focus on the lawyer's having passed work off as his own seems entirely off the mark.
9.7.2007 7:39pm
Tony Tutins (mail):
Anderson, you really spend time recrafting parentheticals? Is that the best use of your clients' money?
Hmm... take Hadley v. Baxendale (Carrier of broken millshaft, who breached contract by delaying carriage, not liable for mill's profits lost as a consequence, because such damages neither arose naturally from the breach nor were reasonably in the contemplation of both parties at time of contract). Now how much time would you spend wordsmithing that? How much would your client have to pay for that exercise? How much value would your client receive for that exercise? I would bet that spending any time doing that would be a breach of fiduciary duty to your client.
9.7.2007 7:44pm
Steve:
I'm quite certain that the court wouldn't have cared about a few cribbed parentheticals in the post-hearing brief had the guy not plagiarized 17 of the 19 pages in his pre-hearing brief.

What this lawyer did is absolutely ridiculous. I don't see why people want to take a tiny portion of his offense, view it in total isolation from the rest, and say "wow, it's incredibly picky for the court to penalize such a thing!"
9.7.2007 8:08pm
Jamesaust (mail):
"...it is plagiarism to use the words of another even if you credit your source."

Hmmm...no, I do not believe this to be true. You are confusing plagiarism with inappropriate scholarship. One could in theory present a paper comprised of nothing but quotations from other sources (properly cited) but still avoid plagiarism. (Of course, the question would arise of whether the assembled quotations presented any worthy or unique expression of ideas appropriate for publication.)

Here, this confusion in 'what is/is not plagiarism' seems to apply. There is no duty to originality in presenting a brief if that brief is an adequate and correct representation of one's client's merits under the law. There might be some question of the quality of representation (or billing) in a case with these exact facts but that is NOT plagiarism.
9.7.2007 8:15pm
ChrisIowa (mail):

Maybe Iowa has some weird customs,


The rest of this topic is outside of my expertise, but let me assure you that this presumption is accurate.
9.7.2007 8:29pm
David M. Nieporent (www):
What attorneys copyright their briefs?
1) The issue here isn't copyright.

2) All of them. Works in the U.S. are born copyrighted. You don't have to "do" anything except write it down to copyright it.
9.7.2007 8:34pm
David M. Nieporent (www):
The bottom line is that the attorney behaved unprofessionally. He did not do the best work he could for his client.
1) You don't know that, and
2) That isn't what he was charged with, so it's a complete red herring. If every lawyer who didn't do the best work he could was charged with an ethical violation, nobody would claim that the U.S. had too many lawyers anymore.
And he falsely took credit for ideas that others not only *wrote*, but *published* under their own name in the expectation that their intellectual rights would be respected.
1) That's an issue between him and the author. For all you know, he had permission to copy it. (It's unlikely, obviously, but that's not the point. The point is that it's between him and the author.)
2) He didn't "falsely take credit." A brief is not an attempt to get "credit" for work. It is an attempt to persuade a court. Signing a brief is a statement that one stands behind it, not that one wrote it; otherwise, half the partners on the planet are falsely taking credit for their associates' work.

All that is important -- or ought to be -- from the point of view of the court is whether the brief was persuasive. (And whether it complies with ordinary rules for briefs, such as not misrepresenting the facts or the law, obviously.) Whether he used someone else's property ought to be an issue between him and the property owner. If he did an inadequate job representing his client, or if he overbilled his client, that ought to be an issue of malpractice between him and his client; it could be an ethics violation as well to overbill his client, but courts generally don't find fees ethically unreasonable unless the person who is paying the bill complains.
9.7.2007 8:56pm
David M. Nieporent (www):
The string-cite rationale is much simpler and more clearcut. The court cannot sanction an attorney for using the same order in a string cite, when that order, unbeknownst to the court, is fully specified by Bluebook.
1) The court didn't sanction the attorney "for using the same order." The court sanctioned the attorney for plagiarizing. The fact that he used the same order was evidence of the plagiarism, not the offense itself.

2) You seem to have this odd notion that the Bluebook is legal authority; law review editors, not courts, "require" it.
9.7.2007 9:14pm
NickM (mail) (www):
David M. N. - in some states, the Blue Book is required by Rules of Court (CA allows either the Blue Book or the California Style Manual).

Nick
9.7.2007 10:33pm
Siona Sthrunch (mail):
I am offended by your illogical comment. You write:


1) The court didn't sanction the attorney "for using the same order." The court sanctioned the attorney for plagiarizing. The fact that he used the same order was evidence of the plagiarism, not the offense itself.

2) You seem to have this odd notion that the Bluebook is legal authority; law review editors, not courts, "require" it.


Bluebook is a standard, one to which which many lawyers and courts adhere. It is the most widely-used citation standard in court filings. This standard specifies the order of cites in a string-cite. That two string-cites are each Bluebook compliant is not evidence that one plagiarized the other. It is only evidence that each is using the standard Bluebook form.

Law review editors require a different form of Bluebook citation than that used by courts; Bluebook has different rules for court documents than for law review articles. Thus, your comment about "law review editors" is irrelevant. However, string-cite order is the same in both.

Let me try and explain the logic a little bit more clearly to you. Suppose that the judge in this case had complained that the lawyer's case citations had used the same abbreviations and citation form as the original. A rational attorney would understand that the fact that the case names were the same did not mean that the case names were plagiarized. Instead, the legal profession adopts standard case name citation formats, codified in Bluebook, so that use of identical case names and citation formats is not evidence of plagiarism.

I think that you should be able to understand that a judge should not be able to use as evidence of plagiarism that a later and an earlier work each cite "Field v. Clark as "143 U.S. 649 (1892)," right?

In the same way, if two string cites have the same ordering, e.g. "Mistretta v. United States, 488 U.S. 361 (1989); Field v. Clark, 143 U.S. 649 (1892); Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825)," this ordering is not evidence of plagiarism. The ordering is only evidence that each author is using standard Bluebook form. One cannot infer plagiarism from adherence to a standard, even if the standard were not legally required.

Thus, what the court thought was "evidence" of plagiarism is no such thing. There may or may not be other evidence of plagiarism, but order of citations in a string cite cannot be such evidence.

I have gone to considerable time and trouble, in this and previous posts, to explain in the simplest possible terms this point to blog readers. I have cited the relevant string cite rules in Bluebook. I have explained that many courts and lawyers follow Bluebook. I have shown that the court in this case in its own opinion does not follow Bluebook or its string-cite rules. I have thus shown that the court may not even know Bluebook string-cite rules, and that this may have affected its assessment of whether there was plagiarism or, if there was, of its extent. I have carefully adduced examples to show that plagiarism cannot be inferred from adherence to Bluebook.

At this point, my patience with this thread is at an end. I do not intend to explain more here on this really very elementary point. I realize this is only a blog, but even by blog standards, I think I have been more than clear. If you and other readers of this blog want to continue to adhere to the position that adherence to Bluebook is evidence of plagiarism, there is nothing more I can say. This is a classic example of the frustration of trying to analyze legal matters on these open blogs. It is simply impossible to write anything that will not be misunderstood and misconstrued by casual and superficial readers.
9.7.2007 10:48pm
Eugene Volokh (www):
Folks: Let's all mellow out here; no need to get offended, or accuse each other of superficiality. Calm and steady wins the race.
9.7.2007 11:04pm
Ella (www):
Siona, step away from the keyboard, drink a martini, take a two week trip to some tropical paradise and try REALLY, REALLY hard to forget everything about the Bluebook. While you're at it, get off whatever power trip you're on from being law review editor or whatever inferiority complex you have from NOT being law review editor. No one's said anything on here to be offended about and if you think otherwise, you need to stay away from every blog that has ever been or ever will be posted.

We all get a little wound up sometimes - that's why they invented martinis and, in a pinch, Xanax.
9.7.2007 11:18pm
Tom Tildrum:
I agree with everyone so far. (How's that for oil on troubled waters, Prof. Volokh?)

It is certainly true that we Government lawyers routinely plagiarize the efforts of earlier Government lawyers, and this practice appears to be widely accepted. It is also my intuition that copying an entire law review article seems like a materially different practice that does not carry such broad acceptance. The problem that I see with this court's ruling is that it does not provide a sufficient analytical framework by which to distinguish these two situations.
9.7.2007 11:24pm
Eugene Volokh (www):
Ella: I appreciate your point, but, likewise, there's really no need to talk about fellow posters' supposed power trips and inferiority complexes. Let's all calm down, rather than baiting each other further.

Tom Tildrum: Good oil! I agree with you, too, and everyone else.
9.7.2007 11:36pm
Tony Tutins (mail):
I'm quite certain that the court wouldn't have cared about a few cribbed parentheticals in the post-hearing brief had the guy not plagiarized 17 of the 19 pages in his pre-hearing brief.

Fair enough. The judge did not want an undigested law review article in the middle of the brief. But apparently the lawyer revised his brief to resemble a normal one, still importing the reasoning and case cites from the law review article. Attorneys are allowed to use arguments that are effective, and they have to support the arguments with cases that actually stand for the propositions the attorney claims, even if they're not the attorney's own original thoughts.

Now I'm wondering if the attorney Shepardized the cases. The judge could certainly complain about that, but that would be an artifact of "plagiarism".
9.7.2007 11:36pm
A. Person:
Perhaps the only argument in favor of requiring attribution is that, if a lawyer presented someone else's argument or writing as his own, prospective clients might get a false idea of the lawyer's abilities.
9.7.2007 11:54pm
David M. Nieporent (www):
Incidentally, even if "Siona's" point -- that one can't infer copying from the evidence -- were valid in the abstract, it appears from the decision that Cannon does not deny copying the string cites; he just denies that it should be deemed plagiarism.
9.8.2007 3:41am
Ted Frank (www):
At least a quarter of the briefs I wrote in private practice were submitted to the court without my name on them; I was often ghost-writing for a local counsel on behalf of a client with a gigantic litigation portfolio, and my national law firm was called in as a SWAT team already familiar with a particular knotty legal issue to get the client out of a sticky situation without ever being admitted pro hac vice, and the briefs would then be submitted by the local counsel at the client's direction, and the national law firm would never see the case again. The court's opinion, read literally, would bar such a practice (the local law firm is plagiarizing the national law firm; the national law firm is plagiarizing itself), though it benefits both the client and the court.

The opinion is silly. The attorney's conduct is particularly egregious, but the person harmed is the client, because the resulting typing job is going to be ineffective (and probably overpriced) advocacy. To label it plagiarism is both overkill and the opening of a gigantic can of worms in future cases; Tildrum identifies precisely the problem with the court's opinion.
9.8.2007 8:49am
Public_Defender (mail):

You copy materials that other people intend for you to copy. It's like copying your motion out of a form book or something. Why isn't this obviously different from a guy who copies his entire brief from a published article? It doesn't seem like a close call at all.


Plagiarism is plagiarism regardless of whether the original author gives permission to copy. The silliness of the Iowa decision is that it treats brief writing like academic writing. The standards for both are very different.

I agree that what this attorney did was bad lawyering. But if courts sanctioned every instance of bad lawyering, they'd have little time left to actually decide cases.

Iowa practitioners need to take notice because the Iowa Supreme Court gets the final say in that state. But the rest of us are entitled to laugh at the court's silliness.
9.8.2007 10:09am
SC Attorney:
The court is missing the big picture.

In theory, the point of our judicial system is to find truth and justice. It’s not about getting bogged down in form over substance. If I can borrow a persuasively written argument that supports my client’s position, I feel ethically obligated to use it.
9.8.2007 4:37pm
Bruce:
It looks to me like the attorney here submitted a really crappy brief. A 1-page argument section tacked on at the end?? I think that's what explains the sanction; the "plagiarism" charge is just the judge's attempt to find an appropriate violation to pin it on (not entirely successfully, in my view).
9.8.2007 5:36pm
Tony Tutins (mail):
Bruce, the 1 page argument deal was in the first brief. The attorney rewrote it and resubmitted it (the "post hearing brief.") Apparently the attorney's second brief was at least a good-faith effort to comply with the judge's order. The faults that the judge found with the second brief seem nitpicky.
9.8.2007 10:05pm
Larry Fafarman (mail) (www):
Judicial opinions that are verbatim or nearly verbatim copies of one side's briefs are a closely related issue. There appears to be a widespread belief that judges often simply request the winning side to write the opinion after deciding which side won the case. Such requests are contrary to the American Bar Association's Model Code of Judicial Conduct, Canon 3B(7) Commentary, which says,

A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.

In the Kitzmiller v. Dover intelligent design case, both sides submitted opening and answering post-trial briefs on proposed findings of fact and conclusions of law. However, the section of the opinion that ruled on the scientific merits of intelligent design was nearly a verbatim copy of the corresponding section of the plaintiffs' opening post-trial brief. This section of the opinion has no evidence that Judge Jones even read any of the other post-trial briefs. Such one-sided copying is greatly frowned upon in the courts. Jones later showed great bias against the defendants by claiming that the Founders believed that organized religions are not "true" religions, greatly increasing the suspicion that he did not bother to read the other post-trial briefs.
9.9.2007 2:44am
ReaderY:
If all the attorney is ethically required to do is cite the article he copied, and use direct quotes where directly quoting, this is not an unreasonable requirement. It's prevent using the article.
9.9.2007 3:21am
Public_Defender (mail):

If all the attorney is ethically required to do is cite the article he copied, and use direct quotes where directly quoting, this is not an unreasonable requirement. It's [not] prevent using the article.


If you are only quoting one article, that works. But briefs are frequently hodge-podges of original work and work from other briefs. The court adopts and enforces an academic definition of plagiarism: "The deliberate and knowing presentation of another person's original ideas or creative expressions as one's own[.]"

That just doesn't work for briefs. If I come up with the novel idea that a specific statute applies in a certain way, do other attorneys have to cite me when making that argument? Yes, under the Iowa Rule. The same applies to brief banks, even when the original author consents.

For defenders of this decision, can you point to any other state that's adopted the Iowa Rule?

And one correction:
9.9.2007 6:39am
Larry Fafarman (mail) (www):
I might add that these briefs that were the basis of the sanctions for plagiarism -- particularly the second brief -- showed more originality than the ID-as-science section of Judge Jones' Kitzmiller v. Dover opinion! Judge Jones' "plagiarism" is discussed here and here.

I am not criticizing the Kitzmiller opinion's ID-as-science section for lack of originality -- I am criticizing it for lack of balance. Judge Jones could have written a non-original but balanced ID-as-science section by copying from the other post-trial briefs as well as the plaintiffs' opening post-trial brief (both sides submitted answering post-trial briefs as well as opening post-trial briefs). Considering the great complexity of the ID-as-science issue, I think that extensive copying here is excusable. IMO Judge Jones should not have ruled on the ID-as-science issue at all, but that is another matter.

Despite the prominence of the Kitzmiller decision and the charge that the opinion's ID-as-science section was copied from the ACLU's opening post-trial brief nearly verbatim, this blog has never had a post about this charge. Meanwhile, this blog has had a lot of posts about trivial and non-legal subjects.
9.9.2007 8:18am
Public_Defender (mail):
I wonder if Iowa judges practice what they preach. If they get an idea from a brief they write, do they cite the original author every time they use it?
9.9.2007 8:48am
Elliot (mail):
To file legal papers is to say that you, as an officer of the court and representative of your client are in agreement with the arguments and are not misleading the court. Not that the arguments are you own original work. The Court mistakingly relies on the latter in its erroneous justification of punishment. I highly doubt that anywhere in the brief did the attorney suggest that he was "the author of the ideas."
9.9.2007 10:11am
Public_Defender (mail):
Let's be specific. Civil Rule 11 defines what lawyers are certifying when we sign court papers:


By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.


Nothing in there says we are certifying that everything was our idea. The Iowa courts may wish that Rule 11 included an anti-plagiarism provision, but it does not. And, as I and others have demonstrated, applying academic plagiarism rules to legal briefing would have all sorts of stupid consequences.

Finally, I should correct what I said in my last post. I meant to say


I wonder if Iowa judges practice what they preach. If they get an idea from a brief an attorney has written, do the judges cite the original author every time they use it?
9.9.2007 12:39pm
Larry Fafarman (mail) (www):
Public_Defender said,
Nothing in there says we are certifying that everything was our idea. The Iowa courts may wish that Rule 11 included an anti-plagiarism provision, but it does not.

The basis for the sanctions was not FRCP Rule 11 or any other national rule, but was a local rule. The judge said under "Conclusions of Law" --

The U.S. District Court's Local Rule 83.2 provides that "[w]hen a member of the bar of this court . . . allegedly engages in misconduct . . . , the court may initiate informal disciplinary proceedings against the lawyer. . . ." S.D. Iowa LR 83.2(g)(3). The Rule allows the Court to conduct such proceedings "in any appropriate manner, including by . . . the imposition of sanctions." S.D. Iowa LR 83.2(g)(3)(A). In defining "misconduct," the Local Rules incorporate the standards set forth in the Iowa Rules of Professional Conduct. S.D. Iowa LR83.2(g)(1). [ellipses in original]

It is a violation of the Iowa Rules of Professional Conduct for an attorney to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Iowa Rules of Prof'l Conduct R. 32:8.4. Plagiarism, which is "[t]he deliberate and knowing presentation of another person's original ideas or creative expressions as one's own," Black's Law Dictionary (8th ed. 2004), is a form of misrepresentation.

However, by incorporating the Iowa Rules of Professional Conduct into the Local Rules, the district court appears to have delegated its authority to make local rules (FRCP Rule 83(a)(1)), and IMO the court has no authority to do that. Also, FRCP 83(a)(1) says, "Each district court, acting by a majority of its district judges, may, after giving appropriate public notice and an opportunity for comment, make and amend rules governing its practice," and there is no evidence that Iowa Rules of Prof'l Conduct R. 32:8.4 ever had appropriate public notice and an opportunity for comment. Furthermore, plagiarism is not specifically mentioned in Iowa Rules of Prof'l Conduct R. 32:8.4 and the judge arbitrarily defined plagiarism in the present context as "misrepresentation." Furthermore, there is a question as to whether Iowa Rules of Prof'l Conduct R. 32:8.4 is "consistent" with FRCP Rule 11, as apparently required by FRCP Rule 83(a)(1). Also, FRCP 83(b), "Procedures When There is No Controlling Law," says,

A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and local rules of the district. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local district rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.

Since plagiarism in the present context is not specifically covered by local rules (the judge arbitrarily defined plagiarism in the present context as "misrepresentation"), then IMO sanctions may not be imposed because the "alleged violator" has not "been furnished in the particular case with actual notice of the requirement" prior to committing the alleged violation.

Also, pro se litigants in particular may need to rely on "plagiarism." Of course, pro se litigants are not subject to the rules of professional conduct for attorneys. But why shouldn't attorneys be allowed to do something that pro se litigants are allowed to do?

IMO the judge not only expected the attorney to re-invent the wheel here but expected the attorney to invent a square wheel.

IMO we need a law exempting court briefs from being required to comply with the copyright laws. Also, attorneys obviously should not charge writing time for copied material but should only charge for the research time in finding the copied material.
9.9.2007 4:28pm
Andy (mail):
Can you plaigarise a contract? Lets say someone has a "terms of use" on their website. Someone else likes it, takes it, changes the names, and posts it on their website. Just curious - this is not a rhetorical question.
9.9.2007 5:47pm
David M. Nieporent (www):
Andy, it doesn't really make sense to discuss it, for the same reason that this court's opinion doesn't make sense: plagiarism is a concept which comes from academia and journalism; it refers to claiming credit for someone else's ideas/work. That's why it's just as much plagiarism to paraphrase as to copy; one is still taking the ideas. But when one drafts a contract, one isn't "claiming credit" for it. (Unless one is drafting the contract for the purpose of, e.g., writing a textbook.)

It might be a copyright violation, but that isn't the same thing at all. And copyright infringement is problematic in a contract context, because of the merger doctrine.
9.9.2007 6:59pm
Correct Facts Please (mail):
I have to write to say that I am appalled at how many factual inaccuracies are at the heart of many, many of these comments. Please! Check the facts rather than make assumptions.

For instance, many assumed the lawyer had reduced his fee for the brief that was nearly all verbatim plagiarized. It doesn't appear so. The court required the lawyer to disgorge his fee (a total of $5735.50, reduced from $11,500) for preparing the brief.
9.10.2007 12:18pm
TerrencePhilip:
On the string cite issue- he did more than simply copy a page-long string citation without attribution- he also copied verbatim the authors' parenthetical explanations of each case in the cite (while omitting a couple of citations that went against him). The real authors' lengthy collection of cases, and their concise explanations of them, was the product of a great deal of original labor and thought.

The court does point to a case where a lawyer was sanctioned for string citations- ten pages from the ALR without attribution!

If you copied 3 or 4 case citations from somewhere, that is a wholly different matter from pawning off very comprehensive and careful work as your own.

An aside- as a matter of style I have found that string citations are distracting to readers and only rarely useful in a brief. If you find that Source A contains a string cite, and feel some need to impress the court that multiple cases go your way, you are better off stylistically citing Source A and noting that it contains numerous cites, rather than a tedious whole-page regurgitation of Source A's contents (Sources B, C, D, E, and F).
9.10.2007 3:13pm
Larry Fafarman (mail) (www):
Correct Facts Please said,
. . .many assumed the lawyer had reduced his fee for the brief that was nearly all verbatim plagiarized. It doesn't appear so. The court required the lawyer to disgorge his fee (a total of $5735.50, reduced from $11,500) for preparing the brief.

You are the one who doesn't have the correct facts. Here is what the judge actually said,


At the Court's request, Mr. Cannon has reported to the Court the total amount which he charged his client for the preparation of both briefs. Mr. Cannon billed his client a total of $5,737.50 for these services. In his response to the Court, Mr. Cannon states: "I have waived fees and costs of $11,500 to my client to accommodate him for my mistake and address the inconvenience to him."

So the $5735.50 does not represent a reduced fee, and the attorney's fee waiver was actually greater than what he charged for preparing the briefs.

Also, in regard to the fact that the ID-as-science section of Judge Jones' Kitzmiller v. Dover opinion is a near verbatim, unattributed copy of material in the ACLU's opening post-trial brief -- IMO this was quite a bit worse than what this attorney did, because this attorney was an advocate for his client whereas Judge Jones was supposed to be a judge and not an advocate. Despite the prominence of the Kitzmiller decision, the legal profession has mostly turned a blind eye towards Judge Jones' copying here.

Also, regarding citation of citations --
Annotated sets of volumes on constitutions, federal and state laws, regulations, etc. have citations, including string citations with parenthetical explanations. Is unattributed copying of citations from these sources also verboten?

BTW, just love that high-falutin legal jargon -- "disgorgement" for "refund." How about "upchuckment"?
9.10.2007 3:42pm
Larry Fafarman (mail) (www):
Also, Judge Jones, in an effort to escape responsibility for his Kitzmiller v. Dover decision, described it as "workmanlike," as though he had merely followed instructions from a handbook. This term "workmanlike" gives a very nonprofessional image to the legal profession.

Wasn't the plagiarism in the writing of these briefs "workmanlike"? The attorney probably just threw some keywords into a legal search engine and turned the crank.

In the movie "Chariots of Fire," a Cambridge Univ. administrator accused Harold Abrahams of acting like a "tradesman" by hiring a professional running coach. At first I thought that "tradesman" meant that Abrahams was pursuing athletics as a sort of businessman rather than as an amateur. Later I realized that "tradesman" was a term of disdain for those who worked with their hands rather than their minds.
9.10.2007 6:21pm
Neil (mail):
The most egregious aspect of this story isn't really the plagiarism. It's the billing fraud. He told his client he spent 25.5 hours on legal briefs that were actually authored by someone else. That was a lie, with the deliberate purpose of extracting more money from the client.
9.10.2007 7:27pm
Public_Defender (mail):

The most egregious aspect of this story isn't really the plagiarism. It's the billing fraud. He told his client he spent 25.5 hours on legal briefs that were actually authored by someone else. That was a lie, with the deliberate purpose of extracting more money from the client.


You are right, if the didn't spend 25 hours researching the issues, reading opposing pleadings, and physically putting together his pleading, he did engage in billing fraud.

That said, the judge was nearly as wrong for applying an academic standard to a legal pleading in violation of the court's local rules and Federal Rule 11. Nothing in the lawyers copied pleading violated Federal Rule 11. And as already pointed out by another reader, the local rule argument is tenuous.
9.10.2007 9:22pm
Dirk (mail):
A tangential point. The Seventh Circuit occasionally rails on lawyers for citing district court opinions which are, after all, nonprecedential for the circuit court. Easterbrook recently wrote it is the lawyer's job not to cite these decisions even if directly on point, but it's acceptable to make the same arguments which if correct will prevail. In that case, the lawyer's mistake is to cite the author and the proper course is to go straight to the author's sources.
9.10.2007 10:21pm
TerrencePhilip:
Dirk,

I will defer to you if you've seen him write they are "not to cite these decisions even if directly on point," but all I recall him saying is that they are not "authority" and should not be cited as such. I have never seen someone actually sanctioned for citing a district court case; with someone as persnickety as Easterbrook it's probably all about the way you phrase something. For example you could surely get away with (a) explaining why you are right, and (b) citing a district court opinion that came out your way if you are careful to say it is persuasive, while admittedly not precedential.
9.10.2007 11:26pm
Larry Fafarman (mail) (www):
Dirk said,
A tangential point. The Seventh Circuit occasionally rails on lawyers for citing district court opinions which are, after all, nonprecedential for the circuit court.

That has changed with the introduction of FRAP Rule 32.1, which says in part,

Rule 32.1. Citing Judicial Dispositions

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and (ii) issued on or after January 1, 2007.

Published district court opinions are not mentioned, but a federal court could hardly bar citations of published district court opinions when it must allow citations of unpublished district court opinions.

Prior to the new rule, The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits banned the citation of unpublished opinions outright, while six other circuits discouraged it.
9.11.2007 1:35am
Larry Fafarman (mail) (www):
Neil said,
The most egregious aspect of this story isn't really the plagiarism. It's the billing fraud. He told his client he spent 25.5 hours on legal briefs that were actually authored by someone else.

Though the attorney may have overcharged the client, he did do a fair amount of work on the briefs. Though the copying was extensive, it was not mindless. The attorney did show that he tried to understand what he was copying and he did try to adapt the copied material to the particulars of the case at hand. The judge said,

Mr. Cannon's only significant modification to the Article text he incorporated into the pre-hearing brief was to delete certain passages, including some that would not support Defendant's attempt to remove counsel for Trustee. As an example, the Article's authors include an impressive string citation supporting the proposition that "the applicant moving for . . . retention . . . is to provide full and complete disclosure of all connections that the professional has with parties in interest in the case." Though Mr. Cannon reproduced this sentence, complete with the page-long string citation supporting it, he deleted two cases from the citation which suggested a lesser standard of disclosure. He also deleted contrary authority from a later section of the text he copied, where the authors devote two paragraphs to treating alternative approaches courts take to conflicts of interest. While the first paragraph states that "some courts" hold only actual conflicts of interest will preclude retention, the second paragraph states that "other courts" will find potential conflicts preclude retention. Mr. Cannon omitted the first paragraph, and recast the first line of the second paragraph to indicate that "most courts" would find that potential conflicts preclude retention.

While Mr. Cannon's post-hearing brief contains more original material than his pre-hearing brief, it still continues to borrow heavily from the Article. Mr. Cannon wrote much of the brief's text, but reproduced string citations from the Article for supporting authority.


Also, the judge said,

Mr. Cannon does not admit to plagiarism in respect to the post-hearing brief because he copied citations, and not text, from the Article. It is his position that the copying of string citations is not plagiarism. However, at least one court has found that reproducing material consisting primarily of citations is in fact plagiarism. See Frith v. State, 325 N.E.2d 186, 188 (Ind. 1975) (attorney who reproduced more than ten pages of an American Law Report in his brief committed plagiarism). Citations, particularly string citations with parenthetical explanations, can contain original expressions and ideas in the same way that text can. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 761 (1997) (Souter, J., concurring) (collecting case citations and commenting on what the "parentheticals here suggest"); Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1256 (11th Cir. 2001) ("The cumulative effect of these citations is persuasive. . . ."). The particular citations appropriated by Mr. Cannon list dozens of cases, and provide a quote or synopsis for each case that explains its relevance to the authors' argument. By passing off these citations as his own, Mr. Cannon plagiarized Schrag and Haut's ideas and expressions just as surely as if he had copied an equivalent amount of text.

The above citations by the judge are inapplicable or out of context. The paraphrased or summarized citation of Frith v. State only says, "attorney who reproduced more than ten pages of an American Law Report in his brief committed plagiarism," and says nothing about a finding that "reproducing material consisting primarily of citations is in fact plagiarism." The citations of Washington v. Glucksberg and Klinedinst v. Swift Invs., Inc. are not in the context of accusations, findings, or sanctioning of plagiarism -- these opinions make no claim that copying string citations is plagiarism.

The judge said,

Mr. Cannon admits he committed plagiarism when he filed the pre-hearing brief, though he minimizes his mistake by characterizing it as a failure to make greater changes to the borrowed material. . . . . .Mr. Cannon's statement that his modifications simply fell short misses the point. Mr. Cannon's ethical shortcoming was in misrepresenting Schrag and Haut's work as his own, and not in failing to adequately disguise their authorship. Id. (noting defendant's failure to contribute any independent thought into his legal argument).

In the ID-as-science section of the Kitzmiller v. Dover opinion, Judge Jones showed his guilty conscience by trying to disguise authorship -- or at least soften charges of plagiarism -- by changing some words here and there when he copied the ACLU's opening post-trial brief. Because the ID-as-science section of the Kitzmiller v. Dover opinion is not a verbatim copy of the corresponding section of the ACLU's opening post-trial brief, there was some controversy over the extent of his copying. There were ridiculous attempts to use word-counting programs to quantify the extent of his copying of ideas -- this obviously is not a reliable method, particularly where the results show a low correlation. A side-by-side comparison of the two texts clearly shows that the ideas in the ID-as-science section were virtually entirely copied from the ACLU's opening post-trial brief.

==========================

It is noteworthy that Mr. Cannon was quite contrite: (1) his fee waiver greatly exceeded what he charged for writing the briefs, (2) he offered to perform 100 hours of community service, and (3) he offered to write a letter of apology to the authors of the plagiarized article.
9.11.2007 12:14pm