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

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