MARCH 2020 | ETHICS IN VIEW

“Copy That!”: What is plagiarism in the practice of law?

by Dennis A. Rendleman, former ABA Ethics Counsel and current Springfield, Illinois, lawyer
“Self-plagiarism is style.”–Alfred Hitchcock

Earworm warning: This column references a song that is notoriously difficult to get out of your head.

My favorite plagiarism/copyright case is Gaste v. Kaiserman, 863 F.2d 1061 (1988). It involves the song “Feelings” by Morris Albert (real name Morris Kaiserman), a song that was ranked No. 7 on Rolling Stone’s readers poll of the 10 Worst Songs of the 1970s.

The case appeals to me because the proof at trial that was upheld by the Second Circuit is convoluted.  Louis Gaste composed a melody called “Pour Toi” as part of the soundtrack for an obscure French film named “Le Feu aux Poudres” in 1956. Sheet music for the song was copyrighted in the U.S. in 1957.

In 1974, seventeen years later, in Brazil, Morris Albert released the song “Feelings.” Two pieces of evidence led the jury to determine that, as the Second District opinion states: “The lapse of time between the original publication of “Pour Toi” and the alleged infringement and the distance between the locations of the two events may make copying less likely but not an unreasonable conclusion.”

First, the plaintiff’s expert testified that: “Gaste’s expert testified not merely to common musical phrases in the songs but said that ‘there is not one measure of ‘Feelings’ which … cannot be traced back to something which occurs in ‘Pour Toi.’ ” He also pointed to a unique musical “fingerprint”–an “evaded resolution”–that occurred in the same place in the two songs.

Second, the plaintiff presented evidence of access consisting of testimony of a former employee that he had sent a recording to the defendant’s publishing company’s owner in the 1950s. The appellate court concludes: 

Although [Plaintiff] Gaste’s theory of access relies on a somewhat attenuated chain of events extending over a long period of time and distance, we cannot say as a matter of law that the jury could not reasonably conclude that [Defendant] Kaiserman [a/k/a Albert] had access to the song through [owner of Defendant publishing company] Lebendiger. Access through third parties connected to both a plaintiff and a defendant may be sufficient to prove a defendant’s access to a plaintiff’s work. The lapse of time between the original publication of “Pour Toi” and the alleged infringement and the distance between the locations of the two events may make copying less likely but not an unreasonable conclusion. Indeed, a copier may be more likely to plagiarize an obscure song from the distant past and a faraway land than a recent well-known hit. [citations omitted]

The point of this digression is recent discussion about plagiarism by lawyers in the legal profession and the ethical issues raised thereby. The Association of Professional Responsibility Lawyers listserv has shared a comments thread on the topic. The substance of the discussion is whether the academic definitions of plagiarism or copyright infringement should apply to writings in the practice of law.

Court cases have been less than enlightening. For example, in December 2019, the judge presiding over the sentencing of former National Security Director Michael Flynn castigated Flynn’s counsel for lifting “verbatim portions from a source without attribution.” The unattributed source was an amicus brief in a different case. There was a hyperlink to that brief in a footnote with general reference to that case. But the judge did not find that sufficient and alleged a violation of D.C. Rule 8.4(c). The D.C. Rule is identical to ABA Model Rule 8.4(c)

It is professional misconduct for a lawyer to:

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(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

In In re Mundie, 453 Fed.Appx. 9 (2011) the United States Court of Appeals for the Second Circuit issued a public reprimand against lawyer Steven A. Mundie that lumped lawyer misconduct within the rubric of plagiarism: 

Mundie was referred to this panel after his filing of a brief in Yi Mei Li v. Mukasey, No. 06–3422–ag, that (a) contained references to evidence not found in the administrative record; (b) misstated the petitioner’s name and gender, as well as the issues to be raised in this Court; and (c) contained extensive portions apparently copied from a brief prepared by another attorney concerning a different litigant.

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The apparent copying raises the issues of whether Mundie engaged in plagiarism, whether he violated his duties to his client and the Court by presenting facts and argument that did not bear on the issues in his case, and whether he charged his client fees for services which he did not render.

(The Mundie Court did not cite to any Rule of Professional Conduct, though reference was made to the ABA Model Standards for Imposing Lawyer Sanctions.) 

The Iowa Supreme Court has contributed to confusion by conflating the academic standards of plagiarism and provision of unbundled legal services with a lawyer’s violation of the Rules of Professional Conduct. In Iowa Sup. Ct. Bd. Of  Prof. Ethics and Conduct v. Lane, 642 N.W.2d 296 (Iowa 2002) the court unfortunately states:

This issue is akin to the matter of ghost-writing attorneys who “author pleadings and necessarily guide the course of the litigation with unseen hand.” In this situation, an attorney authors court documents for a pro se litigant who, in turn, submits the court document as his or her own writing. This practice is widely condemned as unethical and a “deliberate evasion of the responsibilities imposed on attorneys.” Just as ghost writing constitutes a misrepresentation on the court, so does plagiarism of the type we have before us. [citations omitted.]

The Iowa Court’s 2002 perspective on “ghost-writing” as plagiarism or ethically improper has been largely reversed. ABA Formal Opinion 07-446 specifically concludes:

[W]e do not believe that nondisclosure of the fact of legal assistance is dishonest so as to be prohibited by Rule 8.4(c). Whether it is dishonest for the lawyer to provide undisclosed assistance to a pro se litigant turns on whether the court would be misled by failure to disclose such assistance. The lawyer is making no statement at all to the forum regarding the nature or scope of the representation, and indeed, may be obliged under Rules 1.2 and 1.6 not to reveal the fact of the representation.

The Iowa Court references cases regarding plagiarism in the academic context–a whole different universe. See, In Re Zbiegien, 433 N.W.2d 871 (1988)  

(Not even academia has settled the issue, especially what is called “self-plagiarism”–not necessarily the oxymoron it seems. But that’s a digression for another day. See, “The Repetition Compulsion.”)

Judge Richard Posner noted in a brief essay in The Atlantic:  “ ‘Plagiarism,’ in the broadest sense of this ambiguous term, is simply unacknowledged copying, whether of copyrighted or uncopyrighted work.” Moreover, “A writer may... quote a passage from another writer just to liven up the narrative; but to do so without quotation marks–to pass off another writer's writing as one’s own–is more like fraud….”

There are very few cases that state that legal pleadings and briefs can be copyrighted. In one case, co-parties attempting to coordinate filings, resulted in a copyright violation claim. In Newegg, Inc. v. Ezra Sutton, P.A., 120 U.S.P.Q.2d 1111 (C.D. Cal. Sep. 13, 2016) (2016 BL 299780), the District Court of the Central District of California concluded that the defendant lawyer's use of Newegg’s draft brief, provided to him for coordinating purposes, violated Newegg’s copyright (that was filed before the draft was provided) on the draft brief. The defendant lawyer used substantial portions of the draft in his own brief. See, also, May I Copy Legal Arguments from Another Lawyer’s Brief?

But there’s the rub. In the practice of law, plagiarism is not plagiarism just because something is copied. In their 2008 article, “Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty,” professors Carol M. Bast and Linda B. Samuels distinguish between scholarly plagiarism and the practice of law. 

Much of the writing in legal practice is collaborative, with the focus on the persuasiveness of the document, rather than its originality. An attorney is expected to represent the best interests of clients when developing pleadings, motions, briefs, and memoranda of law for consideration by the court and when drafting transnational documents….Practitioners often employ associates and law clerks to draft documents, with oversight by the partner whose client is being served. As a result, a document may be the work product of a number of attorneys.

Moreover:

[A]ttorneys often use form books or earlier documents based on forms to create the draft of a document. In the practice of law, copying is the norm in certain types of writing, perhaps followed by varying degrees of customization.

The gist of the issue is that distilled by professors Peter Joy and Kevin McMunigal in their Ethics column in the ABA Criminal Justice publication:

Rather than focusing on originality, ethics authorities investigating allegations of inappropriate copying in litigation should focus on the quality of the filing, how well it serves its function….If a lawyer simply cuts and pastes an argument from a law review article, someone else’s brief, or even his or her own prior brief, it raises significant concern about whether the lawyer has fulfilled one of a lawyer’s most basic duties, competence. The duty of competence, set forth in Model Rule 1.1, requires thorough preparation, including adequate research into the facts of the case.

Joy and McMunigal, “The Problems of Plagiarism as an Ethics Offense,” ABA Criminal Justice, Summer 2011

Model Rule 1.1 is the applicable standard:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

This approach provides a focus to the debate over plagiarism in writings in the practice of law. In the spirit of this column, I will steal — but cite — my conclusion:

Plagiarism is rightfully a mortal sin in academic settings, where original expression is paramount. Litigation is different, with far more room for borrowing ideas and writings. But be warned that significant unattributed copying may cross the line. Be forthright; give the cite.

Schatz and McGrath “Beg, Borrow, Steal: Plagiarism vs. Copying in Legal Writing,” 26 California Litigation 3 (2013) 

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