While frowned upon in academia, plagiarism in the practice of law has often been considered the sincerest form of flattery.
It is in part driven by a desire to avoid reinventing the wheel where originality is neither warranted nor rewarded. An ethics opinion by the New York City Bar Association observed, the “value derives from their persuasiveness, not from their originality of thought or expression.”
Judges do not expect counsel to reinvent how to articulate the standard for summary judgment or the pleading standard on a motion to dismiss.
In law school future lawyers are taught to follow the IRAC model of writing in which the author states: (a) the Issue of law; (b) the Rule of law; (c) the Application of law; and (d) the Conclusion. This should not be construed to mean the plagiarism is taught or encouraged in law school, where is it generally a violation of most academic codes.
Any briefing on the applicable rule of law often covers well trodden grounds. This is a common area where attorneys cut and paste hornbook law cited in filings by parties in other cases into their own submissions, without attribution.
Plagiarism is not illegal. However, egregious acts of plagiarism could subject an attorney to a copyright infringement claim or ethics complaint.
In a lawsuit filed in December in the United States District Court for the Southern District of New York, a small Boston based law firm claimed that Winston & Strawn, who represented a co-defendant in a patent infringement lawsuit, copied entire sections of its motion nearly verbatim and filed the work as part of Winston’s own motion. The smaller firm obtained a copyright on its motion a week later. Statutory damages of up to $150,000 have been sought against Winston. A copy of the complaint can be found here.
Winston has asserted that filing of a motion on PACER does not constitute publication within the meaning of the Copyright Act and that it engaged in fair use. Arguably Winston could have filed a joinder in the motion and accomplished the same result without running afoul of copyright law or risking an ethical violation.
Even if one of Winton’s defenses prevails, the boutique IP firm provided high value services for which its client was charged. Winston (and its client) took the value of those services without doing the work or incurring a correspondence expense. Even if defensible as a copyright violation, the incident may constitute ethical misconduct.
An ethical breach may arise where the plagiarism amounts to deception. Most ethics codes prohibit conduct involving dishonesty, fraud, deceit or misrepresentation. (See, e.g. ABA Model Rule 8.4(c), R. Regul. FL. Bar 4-8.4(c), and N.Y. Comp. Codes R. & Regs. tit. 22 § 1200.8.4(c)).
Ethical opinions and court decisions on the subject are inconsistent in their treatment of the subject and suggest that any assessment is based on a number of considerations.
For example, in Stilp v. Borough of West Chester, (Case No. 21-3989, Oct. 17, 2022) the United States District Court for the Eastern District of Pennsylvania sanctioned a lawyer who copied and pasted her adversary’s motion in limine, then filed it as her own motion the following day. The Court observed the “blatant similarities”, including the reproduction of three editing errors, and concluded that the motion was the product of plagiarism. The Court found that the plagiarism amounted to a breach of the duty of candor to the Court required by Rule 3.3, a misrepresentation (presumably of the work as her own work product when it was not) under Rule 3.4(c), and a disservice to the client under the duty of competency required under Rule 1.1. Finding the conduct to be objectively unreasonable, the Court imposed sanctions against the attorney representing an adjusted number of hours incurred on a motion to strike and to seek sanctions.
The cautious attorney should be judicious in their borrowing from other people’s work, consider clear attribution when the copying verbatim and extensively, and avoid the brazen and foolish pitfall of stealing the filing of another party in the same case.