Some examples and a new view
This column summarizes two kinds of legal-writing plagiarism and then presents a recent article that proposes a new view of plagiarism in law practice.
Law school plagiarism
In In re Zbiegien, a student who committed plagiarism in a law-school seminar paper was confronted, admitted the plagiarism, and accepted the law school’s penalty: a grade of F. Although he disclosed the plagiarism and penalty on his bar application, he was denied admission. He appealed to the Illinois Supreme Court, which granted him admission, stating, “He has been punished; he is ashamed. … [The law school] elected to give him a second chance. We, too, believe that this conduct will not be repeated.” Two justices dissented.[1]
Reported cases in which law-school plagiarism results in bar discipline are rare, but here are two more that involved lawyers who went back to law school to get an L.L.M. In In re Harper, a lawyer was publicly censured for failing to disclose on his bar application that he had been dismissed from an L.L.M. program for plagiarism.[2] In In re Lamberis, a lawyer committed plagiarism in an L.L.M. thesis and was publicly censured by the state bar. One dissenting justice would have suspended the license.[3]
Plagiarism in court
As those bar-discipline cases show, judges take academic plagiarism seriously. But many courts are just as serious about law-practice plagiarism. In United States v. Sypher, a lawyer’s brief stated the law governing ineffective-assistance-of-counsel claims, but the trial judge discovered that the statement had been copied from Wikipedia. According to the judge, “such cutting and pasting, without attribution, is plagiarism.” The judge also reminded counsel that “Wikipedia is not an acceptable source of legal authority in the United States District Courts.”[4]
And in Columbus Bar Association v. Farmer, a lawyer took over a criminal appeal from another lawyer. He told the client that the appellate brief filed by the previous lawyer “wasn’t worth the paper it was written on,” and withdrew it. But he then filed a brief the court described as “a nearly verbatim recasting of his predecessor’s brief.” His two-year suspension for plagiarism was upheld by the Ohio Supreme Court—though the suspension could be reduced to one year if he refunded all but $1000 of the fee collected in the case.[5]
A new view of plagiarism
In a 2019 law-review article, legal-writing Professor Andrew Carter of Arizona State proposed a bold thesis: Plagiarism of previously written legal briefs by practicing lawyers should no longer be considered a violation of professional norms. (Academic plagiarism is a different matter, he says).[6]
Professor Carter accurately reports that courts in the United States consistently enforce a strong professional standard against plagiarism in legal briefs (see the two cases above). However, although courts condemn plagiarism as “reprehensible” and “wholly intolerable,” they rarely provide a clear rationale for why plagiarism deserves such severe sanctions. Instead, they treat plagiarism as an inherently immoral act, assuming that its prohibition requires no further justification.
In reality, Carter opines, the courts are mistaken. Plagiarism of a previously submitted legal brief violates no universally accepted moral code. Moreover, when we remove moral considerations, it becomes challenging to identify any benefits served by the courts’ prohibition of plagiarism. Carter then argues that if plagiarism of filed briefs were acceptable, society would see certain benefits.
We could increase access to justice if high-volume, low-resource practitioners acting in the public interest were allowed to plagiarize other lawyers’ briefs. In fact, virtually no cognizable harm would arise, and tremendous good might be achieved. Ultimately, Carter concludes, if we consider advantages gained through plagiarism, the argument is strongly in favor of regarding it as a legitimate method for crafting legal briefs.[7]
Carter’s thesis is controversial. What do you think?
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[1] In re Zbiegien, 433 N.W.2d 871, 872, 877 (Minn. 1988).
[2] In re Harper, 645 N.Y.S.2d 846, 846-48. (App. Div. 1996).
[3] In re Lamberis, 443 N.E.2d 549, 550, 553 (Ill. 1982).
[4] United States v. Sypher, 2011 WL 579156, at *3 n.4 (W.D. Ky. Feb. 9, 2011), aff’d, 684 F.3d 622 (6th Cir. 2012).
[5] Columbus Bar Association v. Farmer, 855 N.E. 2d 462, 465, 473 (Ohio 2006).
[6] Andrew M. Carter, The Case for Plagiarism, 9 UC Irvine L. Rev. 531, 535 (2019).
[7] Id. at 554.