To Copy or Not to Copy: That is the Question
By David L. Brandon, past chair of LACBA’s Professional Responsibility and Ethics Committee, a partner with Morris Polich & Purdy LLP, and an adjunct professor of law at Loyola Law School. He may be reached at firstname.lastname@example.org. The opinions expressed are his own.
As this article is being written, the biggest news story of the day is the accusation that Melania Trump, in her speech on the opening day of the Republican National Convention, plagiarized some parts of Michelle Obama’s speech from the 2008 Democratic National Convention. By the time this article is published, this story may have faded from public attention. But the accusation should give lawyers pause and encourage us to consider: What is plagiarism? Is it ever permissible in a legal setting or is it per se unethical? The answer may depend on the circumstances.
We should start with Black’s Law Dictionary which defines plagiarism as “[t]he deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own. . . .”1 But as some commentators have noted, in many settings this is precisely what lawyers do when representing their clients, and representing them effectively.2
For example, many lawyers copy material from form books when drafting court documents and contracts. Indeed, many publications exist for the primary purpose of being copied for the creation of litigation documents such as pleadings or notices.3 Others contain forms to be used in the creation of contracts.4 Individual lawyers and law firms maintain brief banks which they consult and share with other lawyers5 so as not to “reinvent the wheel.”6 Using these forms without attribution could hardly be considered plagiarism unless the lawyer claims it as original thought.7
However, the plagiarism issue can be problematic in other contexts.
First, lawyers may be tempted to use analyses prepared by others with more experience in the field, or who simply are better writers. Doing so without attribution can result in ethical sanctions. For example, in Iowa Supreme Court Attorney Disciplinary Board v. Cannon,8 an attorney was sanctioned after the judge determined that “seventeen of the nineteen pages of legal analysis in [an] initial brief were verbatim excerpts from [an] article, with only variations for format and deletion of matters detrimental to [the lawyer’s] position.”9 The lesson from this case is “[be] forthright: give the cite.”10 Courts have also found that the failure to give proper attribution may violate an attorney’s duty of honesty or candor. In Columbus Bar Association v. Farmer,11 the Ohio Supreme Court found that an attorney who had substituted into a case and filed a brief that was a duplicate of a brief filed by predecessor counsel while representing it to be his own work violated a disciplinary rule prohibiting dishonesty.
Second, attorneys can get into trouble for using their own work for improper purposes. In Kim v. Westmoore Partners, Inc.,12 an appellate attorney requested an extension of time to file a brief by claiming that he needed additional time to conduct research to deal with the complex issues raised in the case. But when he finally submitted his brief, the court determined that it was virtually identical to a brief he had filed in an earlier case, which was inconsistent with his claimed need for an extension. The court sanctioned the attorney $10,000 under its power to sanction counsel for filing frivolous motions.13 Because of the amount of the sanction, the court forwarded a copy of its opinion to the State Bar.14
Using one’s own work can cause problems if the work product is billed improperly. Lawyers often recycle work product, such as discovery or briefs, in their matters. This is entirely appropriate when the matter at hand raises issues that have been raised in other matters that the lawyer has handled and, in fact, can result in significant savings to the client who is not paying for original research or work product. But if a lawyer decides to bill the client for the work product as if it were newly created, ethical lines are crossed.
This scenario was recently addressed by the State Bar’s Committee on Mandatory Fee Arbitration.15 There, the committee noted with approval an ABA opinion stating that “[a] lawyer who is able to reuse old work product has not re-earned the hours previously billed and compensated when the work product was first generated . . . [T]he lawyer who has agreed to bill solely on the basis of time spent is obliged to pass on the benefits of these economies to the client.”16 The committee also cited an ethics opinion concluding that “[a]bsent clear disclosure to the client, attorneys billing on an hourly basis cannot properly add additional hours to a client’s bill when revising such an “in-house” form to reflect the time spent preparing the original (template) form.”17 The committee concluded that failing to disclose the premium (i.e., the billing for the prior work) may be evidence of bill padding.18
It is also possible that billing a client for existing work product may be considered an attempt to collect an unconscionable fee in violation of California Rule of Professional Conduct 4-200.19 The committee noted that when a lawyer bills two clients for the same time, for example, by charging “two clients the full five hours it took [the lawyer] to attend two court hearings for the two separate clients on the same morning in the same court,” the resulting fee may (depending on the circumstances) be considered unconscionable.20
Lawyers should be wary of using the work of others without proper attribution. They should be equally wary of using their own work for an improper purpose.
1 Black’s Law Dictionary (10th ed. 2014).
2 See, e.g., Benjamin G. Shatz & Colin McGrath, Beg, Borrow, Steal: Plagiarism vs. Copying in Legal Writing, 26 Cal. Litig. 3 (2013) [hereinafter Shatz & McGrath]; Peter A. Joy & Kevin C. McMunigal, The Problems of Plagiarism as an Ethics Offense,26 Crim. Just., 2 (2011).
3 See, e.g., California Civil Practice Guide: Civil Procedure Before Trial Forms, The Rutter Group (2016).
4 See, e.g., Miller & Starr California Real Estate Forms (2016).
5 Shatz & McGrath, supra note 2. Page 16.
6 Idiom of unknown origin. See http://www.wisegeek.com/what-does-reinvent-the-wheel-mean.htm.
7 Black’s Law Dictionary, supra note 1. See, also, Federal Intermediate Credit Bank of Louisville v. Kentucky Bar Ass’n (Ky. 1976) 540 S.W.2d 14, 16, note2 (“Legal instruments are widely plagiarized, of course. We see no impropriety in one lawyer’s adopting another’s work, thus becoming the “drafter” in the sense that he accepts responsibility for it.”).
8 (Iowa 2010) 789 N.W.2d 756.
9 Id. at 758. The court apparently became suspicious when it noted that the brief was of “unusually high quality.” Id. at 757.
10 Shatz & McGrath, supra, note 2.
11 111 Ohio St.3d 137 (2006).
12 201 Cal.App.4th 267 (2011).
13 Id. at 292-294.
14 Id. at 295. Bus. & Prof. Code § 6086.7(a)(3) requires a court to notify the State Bar of the imposition of non-discovery sanctions in the amount of $1,000 or higher.
15 Comm. on Mandatory Fee Arb., Arb. Advisory 2016-02: Analysis of Potential Bill Padding and Other Issues (2016), Cal State Bar Ass’n., available athttp://www.calbar.ca.gov/Portals/0/documents/mfa/2016/2016-02_Bill-Padding_r.pdf [hereinafter Comm. on Mandatory Fee].
16 Id., quoting ABA Formal Opinion 93-379 (1993).
17 Id., quoting Orange County Bar Ass’n Formal Opinion 99-001 (1999) and Paul W. Vapnek, et al, California Practice Guide: Professional Responsibility, ¶ para 5-945 (2012).
19 Rule 4-200(A) states that “[A] member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee.” Cal. Rules of Prof’l Conduct, R.4-200(A)
20 Comm. on Mandatory Fee, supra note15.