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July 15, 2019 Criminal Justice Matters

Plagiarism and the War Against Sharing Legal Work

J. Vincent Aprile II

Under the guise of combating plagiarism, some courts and bar associations have launched an all-out assault on the sharing of motions and briefs between attorneys whether facilitated by individuals, programs, or organizations, such as specialized lawyer associations. Motion and/or brief banks were created to increase the individual lawyer’s efficiency and to avoid reinventing the wheel in every case. Incorporating samples from a document bank into a motion or brief without citing the author of the original filing or the source bank itself is not the equivalent of academic plagiarism.

The creators of motion and brief banks usually issue several caveats to potential users. First, each motion or brief should be considered only as a guide or a template, but not as a fail-safe document to be merely replicated with only the names changed. Second, sample libraries cannot and do not vouch for the accuracy and reliability of the statutory and decisional law cited, the analyses asserted, or the applicability of the documents to every jurisdiction. Third, those who elect to use a document from the bank have a responsibility to validate everything in the version of the document that will be filed, including the status of the legal authorities cited. Fourth, bank entries are not to be used in lieu of thorough and comprehensive research, but in conjunction with those obligations. Not every sample bank will contain all of these cautions, but it is a better practice to provide comprehensive guidelines for the use of the available documents.

Importantly, attorneys who created the documents available in sample banks, whether administered by individuals, programs, or organizations, have generously donated their work product to be available to other lawyers seeking assistance on an issue or a claim. There is no question of copyright infringement or the tort of misappropriation under these circumstances when a lawyer uses an available sample. This factor clearly distinguishes the unattributed use of a bank’s sample filing from the lifting, without attribution, of a substantial portion or the entirety of another unconsenting attorney’s motion or brief or from a published article or treatise.

Document banks serve as a form of brainstorming for an attorney working on a legal issue. By reading one or more sample filings on a particular issue, an attorney gets the benefit of the thinking and research of other lawyers who have grappled with the same or similar legal question. Although classic brainstorming consists of a live group discussion of one or more issues, samples from a document bank can provide an experience similar to brainstorming, either validating the lawyer’s initial approach to the issue or providing a different analysis of the legal question presented. “A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” (ABA Model Rules of Professional Conduct r. 1.1, cmt. [2], Competence (Am. Bar. Ass’n 2016). Sample banks may provide an avenue of study on a legal question as well as limited access to the legal analysis of an attorney with experience and expertise on the issue.

Jurisdictions usually have a filing requirement comparable to Federal Rule of Civil Procedure 11 that an attorney “by signing, filing, submitting, or later advocating” for a document “certifies to the best of the [attorney’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that “the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” When an attorney files a document, he or she is vouching for its legal and factual integrity based on a reasonable inquiry. Simply minimally altering a sample filing and submitting it without the appropriate legal and factual inquiry creates a grave risk for the attorney proponent of the document. However, these types of Rule 11 certifications do not usually require, either explicitly or implicitly, that every word in the filing is the lawyer’s original work.

Similarly, ethical rules in virtually all jurisdictions lack mandates that all filings submitted by an attorney in court must contain only original work and/or express attribution for any idea, argument, or sentence that was not initially created by the document’s proponent.

Using the mantra of plagiarism coupled with alleged ethical violations, prosecutors and courts from time to time have challenged criminal defense attorneys for relying on motions that could be traced back to sample libraries. Often the attack on the attorney who filed the document is contemporaneously coupled with a veiled or conditional threat to bring a complaint to the bar association seeking to have the document’s proponent disciplined. A threat of complaint under these circumstances in itself could be unethical conduct on the part of a prosecutor or other opposing counsel if the alleged ethical infraction is frivolous on its face.

For a comprehensive approach to the ethical issues regarding plagiarism in a variety of litigation situations, see N.Y.C. Bar Ass’n, Formal Op. 2018-3, Ethical Implications of Plagiarism in Court Filings (July 13, 2018), and Peter A. Joy & Kevin C. McMunigal, The Problems of Plagiarism as an Ethics Offense, 26:2 Crim. Just. at 56 (Summer 2011).

When being paid on an hourly basis, retained attorneys or court-appointed counsel may only charge for the actual time used in researching and drafting their version of the sample document and may not ethically or legally seek compensation for the work previously done by the author of the sample filing. But, by complying with the Rule 11 type requirements for a filing, counsel has the right to include the time spent reading the cited authorities in the sample and checking the continued viability of those precedents. Yet the use of sample filings may save the person or entity paying for the legal representation money by increasing the lawyer’s efficiency.

Although there are published cases where courts have found the failure to cite the source of a portion or virtually all of a filing to be an ethical violation, those cases dealt with copying without attribution from a treatise or an article, not a sample brief. (Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Lane, 642 N.W.2d 296 (Iowa 2002); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Cannon, 789 N.W.2d 756 (Iowa 2010).) If a lawyer who has used a sample document is accused of failing to cite to the sample as source material, that attorney should be prepared to distinguish those cases akin to academic plagiarism from a situation where the material cited without attribution was a sample document made available for recycling with no strings attached.

Nevertheless, an attorney who uses a sample document needs to review it carefully for any indications that the sample’s author may have appropriated portions of a treatise or an article without citing the source. While this may be a difficult task for the attorney using the sample, a reasonable inquiry under the circumstances is necessary lest the user of the sample inherit the plagiarism sins of the sample’s author. The same clues that would cause an opposing counsel or judge to question whether a filing was the sole work of its proponent should cause the sample user to scrutinize the document for indications that it contains uncited borrowed material. This may be more difficult for the attorney who wants to use the sample because the identity of the document’s author may not be available in the bank or the sample user lacks familiarity with the named author if disclosed.

Courts should appreciate the litigator who seeks out through a sample bank the work of other attorneys to complement his or her own knowledge and research. It makes little sense to discourage litigators from attempting to provide the court and the opposing party the most comprehensive document on the issue by charging plagiarism when none has occurred.

Motion and brief banks serve an important educational purpose, but they also contain the seeds for stagnating the development of the law. When a litigator accepts at face value the sample document as the best analysis coupled with the most persuasive legal authorities and, after reviewing the document, submits it, with the appropriate factual revisions, that attorney has missed the opportunity to enhance the persuasiveness of the motion or claim. The sample motion should be an important building block for the litigator, but not necessarily the final product to be reviewed, copied, and filed.

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J. Vincent Aprile II

J. Vincent Aprile II retired after 30 years as a public defender and joined Lynch, Cox, Gilman & Goodman, PSC, in Louisville, Kentucky, where he specializes in criminal law, employment law, and litigation.