chevron-down Created with Sketch Beta.
March 14, 2023 Top Story

Plagiarism Douses Defense in First Amendment Case

Court brings the heat to offending lawyer over motion in flag-burning dispute

By Shirin Afsous

A federal district court has punished a lawyer for copying and pasting opposing counsel’s motion in limine and filing it as her own the next day. Finding that there was “no serious argument” that the motion had not been plagiarized, the court awarded attorney fees incurred in opposing the motion and in the resulting motion for sanctions. ABA Litigation Section leaders believe that the decision is appropriate under the circumstances and highlights the importance of adhering to the Rules of Professional Conduct.

The defendant's counsel copy-and-pasted "word-for-word" from the plaintiff's motion

The defendant's counsel copy-and-pasted "word-for-word" from the plaintiff's motion

eichinger julien | iStockphoto by Getty Images

Copy-and-Paste with Errors Included

In Stilp v. Borough of West Chester, the plaintiffs filed suit after a local municipality interfered in their flag burning protest on the courthouse steps. The plaintiffs claimed that the burn ordinance relied on by the defendant borough was unconstitutional, in violation of the First Amendment. The claim survived summary judgment and proceeded to trial. On the eve of the deadline for motions in limine, the plaintiffs moved to exclude lay opinion testimony by a police officer to be offered by the defendant on the grounds that he did not have specialized expert knowledge regarding the safety of the flag burning demonstration. The following day, counsel for the defendant filed a virtually identical motion, seeking to preclude lay opinion testimony of the plaintiffs on the same grounds.

The attorneys for the plaintiffs moved to strike the defendant’s motion and also moved for sanctions. The U.S. District Court for the Eastern District of Pennsylvania concluded that the “blatant similarities” between the motions and accompanying briefs were “inescapable.” It found that counsel for the defendant had “lifted word-for-word” from the plaintiffs’ motion. “It also appears that, in her rush to submit her brief by the Court’s deadline, [counsel] failed to change the names of the parties in several places, such that the brief as filed decries the failure of the Borough (her client) to produce and serve documents on the Plaintiffs,” the court observed, also noting that the same typos appeared on both motions.

Based on these similarities and blatant copying, the court stated “…there can be no serious argument that [counsel’s] filings were not the product of plagiarism.” Ultimately, and after “some initial reticence,” counsel for the defendant admitted that she had plagiarized the motion.

The court granted sanctions and awarded attorney fees based on the court’s inherent authority to do so when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. In calculating attorney fees, the court considered the amount of time the plaintiffs’ counsel spent on their original motion and their hourly rates. The defendant’s counsel disputed the number of hours, arguing it was excessive relative to the complexity of the motion. Based on these considerations, the court found that the number of hours listed by the plaintiffs’ counsel was greater than reasonably necessary, but still awarded plaintiffs $8,483.55 in fees and costs.

The court discussed the “disservice” to the defendant due to counsel’s plagiarism. “In substituting plagiarism for preparation, counsel presented an unreasoned, error-filled filing and placed both her client’s motion and potential for alternative resolution at risk.” Finding that the lawyer’s conduct was “objectively unreasonable in light of her ethical obligations,” the court imposed the sanctions award upon counsel but not upon the defendant.

Sloppy Lawyering Diminishes Persuasiveness of Arguments

Cut-and-paste briefing is inconsistent with effective client advocacy. “One cannot rely on arguments formed and articulated by another attorney. Doing so with opposing counsel’s arguments shows that the defendant’s counsel sought not only to lift the legal reasoning, but also to avoid any sort of factual analysis required for adequate client representation,” observes Tiffany Rowe, Washington, DC, cochair of the Litigation Section’s Professional Liability Litigation Committee

Some Section leaders suggest that the court might have addressed this issue in a different way. “Sloppy work makes a brief less persuasive, and an unpersuasive brief is more likely to be denied than a well-written one,” asserts Michael S. LeBoff, cochair of the Section’s Young Lawyer Leadership Program and cochair of the Ethics subcommittee of the Commercial & Business Litigation Committee. “The judge’s first priority should have been the merits. The court could have denied the motion due to a lack of merit. The focus should have been cutting and pasting to the extent that the motion did not make sense, and the merits of the motion were not there,” suggests LeBoff.

Significant Risks to Client

Even though the sanctions in this case were imposed on the lawyer rather than the client, Section leaders believe counsel’s plagiarism can create significant client risks. “An attorney has a duty to provide their own legal advice, based on their research and analysis,” states Rowe. Noting that Pennsylvania Rules of Professional Responsibility applied in this case, Rowe observes that “not only has counsel jeopardized her own good standing with the Pennsylvania bar, but she has also exposed her client to allegations of bad faith in the course of the litigation.”


Hashtags: #plagiarism, #copypaste, #professionalrules

Resource

Shirin Afsous

Shirin Afsous is a contributing editor for Litigation News.


Copyright © 2023, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).

Entity:
Topic:
The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.