‘Plagiarism’ Common in Brief-Writing, but When Is It Too Much?

It often takes more than what people usually think of as plagiarism in a legal brief for a court to sanction an attorney.

Some degree of “borrowing” in legal writing is tolerated, if not expected, in the context of litigation, where persuasiveness and efficiency are usually more important than originality.

“Brief writing is—I don’t want to say not creative—but originality isn’t exactly valued in the same way as a play or sonnet,” Adrienne Koch, a partner at Katsky Korins LLP and President-Elect of the New York County Lawyers Association, said.

In a brief, a lawyer’s chief objective is to persuade the court that the outcome their client seeks is the outcome that the law and precedent require, Koch said. In that context, language that signals similarities to existing ideas is often a good thing.

Although it’s a cardinal sin for an academic writer to borrow another person’s idea—or even their own ideas—without attribution, litigators may find themselves doing it regularly, particularly when citing frequently used legal standards.

Even if lawyers within a firm don’t copy certain language verbatim, they often borrow citations or paraphrase language from colleague’s prior work, she said. Borrowing promotes efficiency in many contexts, which serves the interests of clients who generally don’t want their lawyers to reinvent the wheel if they don’t have to.

“Just about every firm has a mechanism by which lawyers can share their work,” Koch said.

Lawyers may still get into trouble, however—even when borrowing from their own work—if they don’t actually take the time to make sure that the borrowed work is tailored to the case at hand, Koch said.

Aggravating Circumstances

Though frowned upon, there is no uniform standard for determining when a lawyer who copies arguments from another lawyer violates professional obligations.

Lawyers are more likely—but not guaranteed—to run into trouble when they copy-and-paste language written by another firm’s lawyers.

A formal ethics opinion issued in 2018 by the Association of the Bar of the City of New York’s Committee on Professional and Judicial Ethics concluded that plagiarizing another lawyer’s brief isn’t per se professional misconduct.

The theft of an idea or phrasing, without more, doesn’t necessarily constitute a violation of any of the professional rules because, according to the committee, such plagiarism alone doesn’t deceive the client or the court.

The committee noted that generally when courts have sanctioned or admonished attorneys for copying and pasting prior work, it’s because of some aggravating circumstance that independently implicates or compromises an explicit professional obligation.

For example, wholesale copying, even from one’s own prior work, has been found problematic when the execution is sloppy, because that violates a lawyer’s duty of competence. And when wholesale copying of one’s own work is accompanied by an outsized fee request, lawyers have found themselves in trouble for violating the duty of candor, among other things.

Although the New York City bar’s ethics opinion is consistent with an earlier opinion issued by the North Carolina bar, there isn’t a consensus as to when plagiarism runs afoul of professional rules, and some courts are less tolerant than others.

For example, the US District Court for the District of Columbia admonished counsel for Michael Flynn in 2019 when his brief lifted language from an amicus brief without adequate citation. Appropriate attribution and citation to authority is always required, the court said.

As Arthur Burger, chair of Jackson & Campbell PC’s professional responsibility practice, put it, a court “has an absolute right to expect counsel not to be wiseguys and to be transparent in their arguments.”

Dissembling

The US District Court for the Eastern District of Pennsylvania recently sanctioned a lawyer for the Borough of West Chester after she plagiarized much of opposing counsel’s legal arguments in briefing for a motion to preclude lay opinion testimony.

After concluding that Christine Munion’s copying violated multiple ethical rules, Judge Gene E.K. Pratter ordered her to pay over $8,000 in opposing counsel’s fees.

The similarities identified between the original and plagiarized briefs were blatant, Pratter said, and included multiple identical editing errors.

To the extent Pratter believed Munion “dissembled” about whether the brief was copied likely made matters worse, according to Burger.

The legal arguments contained in the plagiarized motion and related briefing were copied almost verbatim from drafts that counsel for the plaintiffs emailed to Munion for discussion in anticipation of a since-canceled trial.

But instead of responding to the email, Munion plagiarized their work, filing her own reciprocal motion, the plaintiffs’ filings said.

The sanctions motion was the only remaining issue. The parties have otherwise resolved the dispute, Pratter’s Oct. 17 order said.

Munion, an attorney with William J. Ferren & Associates, didn’t immediately respond to an email requesting comment.

Lawyers at Mette, Evans & Woodside, counsel for the plaintiffs, declined to comment.