Plagiarism

Today’s lesson in what not to do comes from a bankruptcy court in Iowa. The judge there read two briefs filed by the same lawyer, found that they contained “an extraordinary amount of research,” and ordered the lawyer to certify the author or authors of the briefs. The lawyer confessed that he “relied heavily” on an article written by two other lawyers. The judge found the article on the Internet and discovered that “relied heavily” was an understatement:

Seventeen of the nineteen total pages in the pre-hearing brief are verbatim excerpts from the Article. 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. The twenty pages Mr. Cannon reproduced appear as they did in the Article, with slight variations in formatting of the type that result when material is copied from one electronic document into another.
...
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.

The lawyer suggested that his punishment consist of a letter of apology to the article’s authors and community service. The court had other ideas, ordering the lawyer to do the following:

• Take a law-school course in professional responsibility.
• Refund any fee collected from his client for writing the briefs.
• Notify the article’s authors of the court’s action and provide the court with a copy of that correspondence.

The court also sent a copy of its order to the Iowa Supreme Court Attorney Disciplinary Board.

Besides drawing sanctions, the lawyer’s conduct disserved his client’s interests, the court wrote. “[P]arroting a scholarly article in this way,” the court advised, “is not an effective type of advocacy.”

The moral of this story: When writing, do what a writer does. Write. Don’t copy. If you borrow someone else’s ideas, give an attribution. (Speaking of which, hat tips to The Volokh Conspiracy, TaxProf Blog, and Legal Writing Prof Blog.)

Comments

[peter]

I think the comments over at the Tax Prof Blog illuminate the fact the real sin here is not plagiarism. Lawyers and judges plagiarize as a matter of course. Would you not cut and paste a brief that was useful, and would you cite or otherwise provide attribution to the brief? Of course you would cut and paste, and of course you would not provide attribution. But there is a real sin in the lawyer's actions in the case -- he charged nearly $6000 for his "research." That's fraud, and fraud by a lawyer is tortious and criminal. What ethical, statutory, administrative, or common law duty is a lawyer violating by copying without attribution something that presents an effective argument on behalf of his client?

[Appealing in Nevada]

Definitely an interesting opinion. To me, the best line was "Because [attorney] 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."

However, I think a class in legal writing might have been more fitting.