Arguments Made By The Another Side
More prosaically, and not surprisingly given how it. was drafted, the brief also failed to address any of the cases cited. or arguments made hy the other side. The court held that submitting a brief that was almost entirely taken from unidentified, unattributed sources was "(o]obviously... unacceptable" (id. at *10) and sanctionable under New York State Rule of Professional Conduct 8.4, "which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation." (Id. at*10, fn. 9.)
Undoubtedly, cut-and-paste briefing, lack of proper citation, and failure to squarely respond, are all hallmarks of poor practice. But is that sort of briefing really "plagiarism," worthy of sanctions for dishonesty?
How, exactly, did the attorney's conduct materially differ from what happens in court rooms on a daily basis? Using language from various sources - published and unpublished court opinions, corporate attorneys, treatises, articles, even blogs - is widespread in legal writing. Both Westlaw and Lexis have extensive brief banks enabling lawyers to see how other lawyers have briefed given issues. Should litigators worry about plagiarism sanctions sterruning from these practices? Does any form of copying without attribution constitute plagiarism in the litigation context?
What is"Plagiarism"? -
Black's Law Dictionary defines "plagiarism" as the "deliberate and knowing presentation of another person's original ideas or creative expressions as one's own." (Black's Law Diet. (9th ed. 2009) p. 1267, col. 1.) This definition is not particularly helpful for determining what constitutes plagiarism for practicing lawyers. Legal arguments are presented to courts for evaluation of their merits, not their origins. The quality of an attorney's presentation may be a factor of its pervasiveness, but is not itself directly evaluated.
Nor does a lawyer make an argument. necessarily mean to imply that "this is my argument; the product of my genius, and not the• result of ideas from my clients, partners, associates, research sources, or anyone else." Judge Richard Posner has written that plagiarism is "innocent" when done in a context in which "no value is attached to originality,"noting that judges " 'steal' freely from one another without attribution or any ill will." (Posner, On Plagiarism (April 2002) The Atlantic Monthly, at p. 23.)
The law dictionary definition seems to encompass a broad range of activity, including conduct that is standard operating procedure for Miting pleadings and briefs. Many lawyers rely on form books written for the specific purpose that other lawyers may copy them. (See Federal Intermediate Credit Bank v. Kentucky Bar Assn. (Ky. 1976) 540 S.W.2d 14, 16 [no impropriety in plagiarizing legal instruments].) Law firms and legal offices of all sorts maintain copies of briefs and pleadings for their attorneys to consult and reuse. Senior attorneys often sign documents drafted primarily by junior lawyers (named or unnamed) in their employ. These practices seemingly fall within the wide definition of "plagiarism," yet such practices are expected and encouraged by the legal profession as efficient and effective lawyering. Thus, "plagiarism" as applied to litigators must be more than merely using another attorney's "original ideas or creative expressions as one's own.