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Plagiarism in Lawyers' Written Advocacy University of Missouri School of Law Scholarship Repository Faculty Publications Faculty Scholarship Summer 2013 Plagiarism in Lawyers’ Written Advocacy (Part II) Douglas E. Abrams Follow this and additional works at: https://scholarship.law.missouri.edu/facpubs Part of the Law Commons Legal Studies Research Paper Series Research Paper No. 2013-22 Plagiarism in Lawyers’ Written Advocacy (Part II) Douglas E. Abrams Published in the Summer 2013 issue of Precedent, the quarterly magazine of the Missouri Bar: http://www.mobar.org/uploadedFiles/Home/Publications/Precedent/2013/Fall/abrams.pdf Copyright 2013 by The Missouri Bar This paper can be downloaded without charge from the Social Sciences Research Network Electronic Paper Collection at: http://ssrn.com/abstract=2363680 Electronic copy available at: http://ssrn.com/abstract=2363680 WRITING IT RIGHT Plagiarism in Lawyers’ Written Advocacy (Part II) By Douglas E. Abrams The lawyer’s plagiarism creates a goes undetected despite determined ef- genuine risk that the court’s written forts to uncover it. Whether or not ju- This two-part article discusses opinion itself will inadvertently pla- dicial sleuthing for lawyers’ plagiarism disciplinary sanctions that have been, giarize, and also distorts the meaning actually detects unauthorized copying and may be, imposed on lawyers who and import of the lawyer’s adversary in any of the hundreds of cases that commit plagiarism in briefs and other argument on the client’s behalf. busy courts consider each year, how- filings submitted to the court. Part I ever, sleuthing would compromise the discussed decisions that have found Inadvertent Judicial sound administration of justice by ex- or intimated that counsel’s plagia- Plagiarism pending time and other finite resources rism violated Rule 8.4(c) of the ABA As “an officer of the legal system,”47 that courts can more efficiently spend Model Rules of Professional Conduct, a lawyer submits briefs and other managing their “pressing dockets” and which states that it is professional papers with the expectation that the deciding cases.51 misconduct for a lawyer to “engage in court may incorporate portions of the The court’s inadvertent incorpora- conduct involving dishonesty, fraud, prevailing party’s argument and analy- tion of plagiarized portions of a brief deceit or misrepresentation.” sis in the opinion that accompanies may smack of shortcutting that ques- Part II now discusses why, as an the interlocutory or final decision.48 tions the competence and diligence independent ground for sanction, Whether or not the opinion cites to the that the ABA Model Code of Judicial lawyers’ plagiarism in written submis- lawyer’s submission, incorporation Conduct expects from judges.52 Where sions to the court also violates Model can be a professional badge of honor the lawyer plagiarizes an article or Rule 8.4(d), which reaches lawyers for counsel who prevail. “When an other private source, the court’s incor- who “engage in conduct that is preju- attorney writes such an excellent brief poration may also smack of misap- dicial to the administration of justice.” that some of its passages make their propriating intellectual property, and Courts, however, have yet to explore way into the eventual decision, he thus may implicate “impropriety and advocates’ plagiarism through the experiences a sense of gratification,” the appearance of impropriety” that Model Rule 8.4(d) lens. said Chief Justice George Rossman of the judicial code summons judges to the Oregon Supreme Court more than avoid.53 Inadvertence would remove PREJUDICE TO THE a half century ago.49 basis for judicial discipline, but would ADMINISTRATION OF JUSTICE The prospect of judicial incorpora- not necessarily blunt public or pro- “If our adversary system is to tion means that unless the judge or fessional criticism of the judge, who function according to design,” wrote law clerk parses the parties’ briefs holds ultimate “responsibility person- Justice Thurgood Marshall, “we must and other submissions in search of ally to decide the matter” under the assume that an attorney will observe paragraphs or pages of copied work, a judicial code.54 his responsibilities to the legal system, plagiarizing lawyer’s “literary theft”50 The Illinois Supreme Court has held as well as to his client.”46 By upsetting can land in the written opinion as the that lawyers’ plagiarism “displays an this design, counsel’s plagiarism in a court’s own inadvertent literary theft. extreme cynicism towards the property submission to the court violates Model Successful parsing is by no means rights of others” and “a lack of hones- Rule 8.4(d) as “conduct that is preju- guaranteed because in the academic ty.”55 “All honest scholars are the real dicial to the administration of justice.” arena, as elsewhere, much plagiarism victims.”56 When lawyers infect the 24 Precedent Summer 2013 Electronic copy available at: http://ssrn.com/abstract=2363680 WRITING IT RIGHT proceeding with plagiarism that may decision-making. In United States court does not recommend a sanc- find its way into the court’s opinion, v. Bowen, defense counsel sought to tion for violation,64 being labeled a they prejudice the administration of overturn the client’s 30-year prison plagiarist in the bound reporter or on justice because the ABA Model Code sentence with a brief that appeared electronic retrieval is a serious profes- of Judicial Conduct summons judges to reflect counsel’s own unadorned sional setback for a lawyer, whose to “aspire at all times to conduct that argumentation. Counsel would have reputation for integrity is a core per- insures the greatest possible public reduced the prospect of judicial error sonal asset.65 confidence in their . integrity.”57 by candidly informing the 6th Circuit Lawyers’ plagiarism also violates “Judges hold a position of public panel that the argument rested on the Model Rule 8.4(d) as “conduct that trust,” concludes Chief Justice John earlier opinion of the Massachusetts is prejudicial to the administration of G. Roberts, Jr., “and the public has a district court, which held constitutional justice.”66 Not only does this plagia- right to demand that they adhere to a authority to hear and decide the merits rism create genuine risk of inadvertent demanding code of conduct.”58 At the without a personal or professional plagiarism by the court, but it also least, this aspiration and public right stake in the outcome. distorts the meaning and import of contemplate that judges will meet the In In re Burghoff, counsel disserved the adversary argument that underlies standards of integrity that Model Rule the administration of justice by failing reasoned decision-making. 8.4 demands from the lawyers who to inform the bankruptcy court that “The process of deciding cases on appear before them. his analysis reflected the presumably appeal,” wrote Chief Justice Arthur T. disinterested perspectives of two Vanderbilt of the New Jersey Supreme Distorting the Adversary prominent practitioners in a law Court, “involves the joint efforts of Argument review article, or at least by failing counsel and the court. It is only when “[T]he judicial process [is] at its to cite the article and invite the court each branch of the profession performs best,” wrote Justice Felix Frankfurter, to consider it for whatever value its function properly that justice can when courts receive “comprehensive the court might ascribe. Similarly, be administered to the satisfaction of briefs and powerful arguments on in Kingvision Pay Per View, Ltd. both the litigants and society and a both sides.”59 Counsel’s plagiarism v. Wilson, counsel overlooked the body of decisions developed that will compromises the sound administration prospect that the court might have be a credit to the bar, the courts and of justice (and, as Justices Frankfurter deliberated differently if it had known the state.”67 and Marshall suggested, may also that argumentation came from the weaken the client’s cause) by inducing iconic multi-volume Wright-Miller- ENDNOTES the court to mistake the brief’s copied Cooper federal civil practice treatise, 46 Geders v. United States, 425 U.S. 80, 93 (1976) (Marshall, J., concurring). passages as products of counsel’s own and not from counsel’s own prose 47 ABA MODEL RULES OF PROF’L CONDUCT, partisan thought processes, rather created on retainer. Pmbl. para. [1]; see also, e.g., Goldfarb v. Va. than as an uncompensated non-party’s State Bar, 421 U.S. 773, 792 (1975) analysis presumably helpful to the CONCLUSION (“[L]awyers are essential to the primary gov- ernmental function of administering justice, proponent. “[C]ases are won on the Reported decisions calling atten- and have historically been ‘officers of the facts and the law,” said Judge John C. tion to lawyers’ plagiarism were rare courts.’”); Norelus v. Denny’s, Inc., 628 F.3d Godbold of the U.S. Court of Appeals before about 2000.61 Plagiarism today, 1270, 1308 (11th Cir. 2010) (“[E]very lawyer serves, not only as an advocate, but as an of- for the 11th Circuit, “not on the however, imposes professional embar- ficer of the court.”). eminence, polished writing, oratory, or rassment when the list of counsels’ ap- 48 See, e.g., Herbert F. Goodrich, A Case on personality of counsel.”60 pearances or the court’s opinion itself Appeal – A Judge’s View, in CLASSIC ESSAYS, The three decisions discussed in identifies the lawyer whose “literary supra note 49, at 517 (“[S]ome judges lift 62 a portion of the successful party’s brief and Part I of this article demonstrate how theft” fits so naturally within Model incorporate it into the opinion of the court.”). undetected plagiarism can distort the Rule 8.4(c)’s recitation of “conduct 49 George Rossman, Appellate Practice and meaning and import of the adversary involving dishonesty, fraud, deceit or Advocacy, 16 F.R.D.
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