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.
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?
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.
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.
(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!)
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.
Is an attorney at one firm required to cite the work of another attorney at the same firm?
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...
All appellate court opinions around here would be plagiarism under that standard.
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.
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.
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.
As for the sanction, how much is someone going to learn about plagiarism in a law school ethics course?
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.
The penalty is cool, however.
Although the judge is supposedly excoriating council for a lengthy unatributed citation, he seems to be implying that all filings need to be original!
What attorneys copyright their briefs?
"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.
"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.
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.)
"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>"
Plagiarism?
What if the proposed order contained a verbatim excerpt from the transcript of the court's language?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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!
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.
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.
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.
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.
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.
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.
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!"
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.
The rest of this topic is outside of my expertise, but let me assure you that this presumption is accurate.
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.
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.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.
2) You seem to have this odd notion that the Bluebook is legal authority; law review editors, not courts, "require" it.
Nick
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.
We all get a little wound up sometimes - that's why they invented martinis and, in a pinch, Xanax.
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.
Tom Tildrum: Good oil! I agree with you, too, and everyone else.
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".
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.
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.
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.
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.
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:
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.
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
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" --
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,
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.
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.
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.
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).
You are the one who doesn't have the correct facts. Here is what the judge actually said,
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"?
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.
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.
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.
That has changed with the introduction of FRAP Rule 32.1, which says in part,
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.
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,
Also, the judge said,
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,
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.
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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.