Plagiarism in Lawyers' Written Advocacy (Part II) - the Missouri Bar

WRITING IT RIGHTPlagiarism in Lawyers’Written Advocacy (Part II)By Douglas E. AbramsThis two-part article discussesdisciplinary sanctions that have been,and may be, imposed on lawyers whocommit plagiarism in briefs and otherfilings submitted to the court. Part Idiscussed decisions that have foundor intimated that counsel’s plagiarismviolated Rule 8.4(c) of the ABAModel Rules of Professional Conduct,which states that it is professionalmisconduct for a lawyer to “engage inconduct involving dishonesty, fraud,deceit or misrepresentation.”Part II now discusses why, as anindependent ground for sanction,lawyers’ plagiarism in written submissionsto the court also violates ModelRule 8.4(d), which reaches lawyerswho “engage in conduct that is prejudicialto the administration of justice.”Courts, however, have yet to exploreadvocates’ plagiarism through theModel Rule 8.4(d) lens.PREJUDICE TO THEADMINISTRATION OF JUSTICE“If our adversary system is tofunction according to design,” wroteJustice Thurgood Marshall, “we mustassume that an attorney will observehis responsibilities to the legal system,as well as to his client.” 46 By upsettingthis design, counsel’s plagiarism in asubmission to the court violates ModelRule 8.4(d) as “conduct that is prejudicialto the administration of justice.”24The lawyer’s plagiarism creates agenuine risk that the court’s writtenopinion itself will inadvertently plagiarize,and also distorts the meaningand import of the lawyer’s adversaryargument on the client’s behalf.Inadvertent JudicialPlagiarismAs “an officer of the legal system,” 47a lawyer submits briefs and otherpapers with the expectation that thecourt may incorporate portions of theprevailing party’s argument and analysisin the opinion that accompaniesthe interlocutory or final decision. 48Whether or not the opinion cites to thelawyer’s submission, incorporationcan be a professional badge of honorfor counsel who prevail. “When anattorney writes such an excellent briefthat some of its passages make theirway into the eventual decision, heexperiences a sense of gratification,”said Chief Justice George Rossman ofthe Oregon Supreme Court more thana half century ago. 49The prospect of judicial incorporationmeans that unless the judge orlaw clerk parses the parties’ briefsand other submissions in search ofparagraphs or pages of copied work, aplagiarizing lawyer’s “literary theft” 50can land in the written opinion as thecourt’s own inadvertent literary theft.Successful parsing is by no meansguaranteed because in the academicarena, as elsewhere, much plagiarismPrecedent Summer 2013goes undetected despite determined effortsto uncover it. Whether or not judicialsleuthing for lawyers’ plagiarismactually detects unauthorized copyingin any of the hundreds of cases thatbusy courts consider each year, however,sleuthing would compromise thesound administration of justice by expendingtime and other finite resourcesthat courts can more efficiently spendmanaging their “pressing dockets” anddeciding cases. 51The court’s inadvertent incorporationof plagiarized portions of a briefmay smack of shortcutting that questionsthe competence and diligencethat the ABA Model Code of JudicialConduct expects from judges. 52 Wherethe lawyer plagiarizes an article orother private source, the court’s incorporationmay also smack of misappropriatingintellectual property, andthus may implicate “impropriety andthe appearance of impropriety” thatthe judicial code summons judges toavoid. 53 Inadvertence would removebasis for judicial discipline, but wouldnot necessarily blunt public or professionalcriticism of the judge, whoholds ultimate “responsibility personallyto decide the matter” under thejudicial code. 54The Illinois Supreme Court has heldthat lawyers’ plagiarism “displays anextreme cynicism towards the propertyrights of others” and “a lack of honesty.”55 “All honest scholars are the realvictims.” 56 When lawyers infect the

WRITING IT RIGHTproceeding with plagiarism that mayfind its way into the court’s opinion,they prejudice the administration ofjustice because the ABA Model Codeof Judicial Conduct summons judgesto “aspire at all times to conduct thatinsures the greatest possible publicconfidence in their . . . integrity.” 57“Judges hold a position of publictrust,” concludes Chief Justice JohnG. Roberts, Jr., “and the public has aright to demand that they adhere to ademanding code of conduct.” 58 At theleast, this aspiration and public rightcontemplate that judges will meet thestandards of integrity that Model Rule8.4 demands from the lawyers whoappear before them.Distorting the AdversaryArgument“[T]he judicial process [is] at itsbest,” wrote Justice Felix Frankfurter,when courts receive “comprehensivebriefs and powerful arguments onboth sides.” 59 Counsel’s plagiarismcompromises the sound administrationof justice (and, as Justices Frankfurterand Marshall suggested, may alsoweaken the client’s cause) by inducingthe court to mistake the brief’s copiedpassages as products of counsel’s ownpartisan thought processes, ratherthan as an uncompensated non-party’sanalysis presumably helpful to theproponent. “[C]ases are won on thefacts and the law,” said Judge John C.Godbold of the U.S. Court of Appealsfor the 11th Circuit, “not on theeminence, polished writing, oratory, orpersonality of counsel.” 60The three decisions discussed inPart I of this article demonstrate howundetected plagiarism can distort themeaning and import of the adversaryargument that underlies judicialdecision-making. In United Statesv. Bowen, defense counsel sought tooverturn the client’s 30-year prisonsentence with a brief that appearedto reflect counsel’s own unadornedargumentation. Counsel would havereduced the prospect of judicial errorby candidly informing the 6th Circuitpanel that the argument rested on theearlier opinion of the Massachusettsdistrict court, which held constitutionalauthority to hear and decide the meritswithout a personal or professionalstake in the outcome.In In re Burghoff, counsel disservedthe administration of justice by failingto inform the bankruptcy court thathis analysis reflected the presumablydisinterested perspectives of twoprominent practitioners in a lawreview article, or at least by failingto cite the article and invite the courtto consider it for whatever valuethe court might ascribe. Similarly,in Kingvision Pay Per View, Ltd.v. Wilson, counsel overlooked theprospect that the court might havedeliberated differently if it had knownthat argumentation came from theiconic multi-volume Wright-Miller-Cooper federal civil practice treatise,and not from counsel’s own prosecreated on retainer.CONCLUSIONReported decisions calling attentionto lawyers’ plagiarism were rarebefore about 2000. 61 Plagiarism today,however, imposes professional embarrassmentwhen the list of counsels’ appearancesor the court’s opinion itselfidentifies the lawyer whose “literarytheft” 62 fits so naturally within ModelRule 8.4(c)’s recitation of “conductinvolving dishonesty, fraud, deceit ormisrepresentation.” 63 Even where thePrecedent Summer 2013court does not recommend a sanctionfor violation, 64 being labeled aplagiarist in the bound reporter or onelectronic retrieval is a serious professionalsetback for a lawyer, whosereputation for integrity is a core personalasset. 65Lawyers’ plagiarism also violatesModel Rule 8.4(d) as “conduct thatis prejudicial to the administration ofjustice.” 66 Not only does this plagiarismcreate genuine risk of inadvertentplagiarism by the court, but it alsodistorts the meaning and import ofthe adversary argument that underliesreasoned decision-making.“The process of deciding cases onappeal,” wrote Chief Justice Arthur T.Vanderbilt of the New Jersey SupremeCourt, “involves the joint efforts ofcounsel and the court. It is only wheneach branch of the profession performsits function properly that justice canbe administered to the satisfaction ofboth the litigants and society and abody of decisions developed that willbe a credit to the bar, the courts andthe state.” 67ENDNOTES46 Geders v. United States, 425 U.S. 80, 93(1976) (Marshall, J., concurring).47 ABA Model Rules of Prof’l Conduct,Pmbl. para. [1]; see also, e.g., Goldfarb v. Va.State Bar, 421 U.S. 773, 792 (1975)(“[L]awyers are essential to the primary governmentalfunction of administering justice,and have historically been ‘officers of thecourts.’”); Norelus v. Denny’s, Inc., 628 F.3d1270, 1308 (11th Cir. 2010) (“[E]very lawyerserves, not only as an advocate, but as an officerof the court.”).48 See, e.g., Herbert F. Goodrich, A Case onAppeal – A Judge’s View, in Classic Essays,supra note 49, at 517 (“[S]ome judges lifta portion of the successful party’s brief andincorporate it into the opinion of the court.”).49 George Rossman, Appellate Practice andAdvocacy, 16 F.R.D. 403, 403 (1955).50 Webster’s New Collegiate Dictionary898 (9th ed. 1983).25

WRITING IT RIGHT51 John G. Roberts, Jr., Chief Justice’s2010 Year-End Report on the Federal Judiciary4 (discussing the federal courts’ “pressingdockets” and efforts to produce “cost savings,improved efficiency, and reduced backlogs”),http://www.supremecourt.gov/publicinfo/yearend/year-endreports.aspx.52 ABA Model Code of Judicial Conduct,R. 2.5 (2010).53 Id., R. 1.2 (2010).54 Id., R. 2.9(A)(3) (2010).55 In re Lamberis, 443 N.W.2d 549, 551-52(Ill. 1982).56 Id. at 552.57 ABA Model Code of Judicial Conduct,pmbl. para. [2] (2010).58 Chief Justice’s 2007 Year-End Report on theFederal Judiciary 5, http://www.supremecourt.gov/publicinfo/year-end/year-endreports.aspx.59 Adamson v. California, 332 U.S. 46, 59(1947) (Frankfurter, J., concurring).60 John C. Godbold, Twenty Pages andTwenty Minutes: Effective Advocacy on Appeal,30 Sw. L.J. 801, 808 (1976).61 See, e.g., In re Hinden, 654 A.2d 864(D.C. Ct. App. 1995) (lawyer publicly censuredfor plagiarism in article he wrote); In reLamberis, supra note __ (lawyer censured forplagiarism in LL.M. thesis he submitted to alaw school); Frith v. State, 325 N.E.2d 186,188 (Ind. 1975) (about 14 pages of defensecounsel’s brief were copied without quotationmarks, indentation or citation from a volume ofAm. L. Rep. (ALR) 3d).62 Webster’s New Collegiate Dictionary870 (1980).63 ABA Model Rules of Prof’l Conduct,R. 8.4(c).64 See, e.g., State Farm Fire & Cas. Co. v.Harris, 2012 WL 896253, No. 3:11-36 (E.D.Ky. Mar. 15, 2012) (defense counsel’s argument“is easily summarized, as all but six sentences(out of seven pages) are lifted – withoutattribution – directly from” a recent decisionof the court; “It should go without saying thatsuch plagiarism is ‘completely unacceptable.’”)(citation omitted).65 See, e.g., Harlyn Sales Corp. Profit SharingPlan v. Kemper Fin. Servs., 9 F.3d 1263,1269 (7th Cir. 1993) (“A lawyer’s reputationfor integrity, thoroughness and competenceis his or her bread and butter.”); People exrel. Karlin v. Culkin, 162 N.E. 487, 492 (N.Y.1928) (Cardozo, J.) (a lawyer’s reputation“is a plant of tender growth, and its bloom,once lost, is not easily restored”); Stephen P.Younger, Reflections on the Life and Work ofthe Honorable Hugh R. Jones, 65 Alb. L. Rev.13, 13 (2001) (quoting Judge Jones of the N.Y.Court of Appeals; “a lawyer’s reputation is hisprincipal asset”).66 ABA Model Rules of Prof’l Conduct,R. 8.4(d).57 In re Greenberg, 104 A.2d 46, 49 (N.J.1954).This two-part article appeared in volume 47 ofthe Wake Forest Law Review.Douglas E. Abrams, a lawprofessor at the Universityof Missouri, has written orco-authored five books.Four U.S. Supreme Courtdecisions have cited hislaw review articles.