Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Plagiarizing In Your Brief?  Don’t Do It.

Does copying into a brief from third party materials, or one’s own past work product, constitute plagiarism—and does that violate ethical obligations?  Some recent cases suggest that it may be.

Copycat briefing may implicate at least two ethical duties:  the duties of candor and competence.1  Both rules may be implicated when an attorney copies a source without attribution—impliedly representing that it represents the attorney’s work product—or fails to tailor the material to the case.

In Lohan v. Perez,2 the court sanctioned an attorney for plagiarizing the majority of her brief from articles and blogs “without any acknowledgment of identification of these sources.”  According to the court, “this type of conduct is unacceptable and, in the Court’s view, is sanctionable pursuant to its inherent powers.”  Moreover, “[t]he plagiarism of the type at issue here would likely be found to violate New York State Rule of Professional Conduct 8.4, which prohibits a lawyer from ‘engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentations.’ [Citations.]”3

While the court was perturbed by the apparent plagiarism, it was also concerned that the brief was an almost verbatim copy of a brief from another case and did not meaningfully address the issues on appeal4—implicating the duty of competence.  The attorney compounded her errors by falsely claiming that she had asked the opposition for permission to file an amended brief that would have addressed the plagiarism issues.5  While all this may have weighed into the court’s opinion, however, the court sanctioned the attorney specifically on the plagiarism issue.

Would a California court do the same if, for example, an attorney copies other sources—or even his or her own brief?  In Kim v. Westmoore Partners, Inc.,6 the court on its own motion sanctioned an attorney for filing an appellate brief that copied heavily from that attorney’s prior court filings.  The Westmoore Partners court’s focus, however, was not the copying per se, but that the attorney had requested an extension to research cases and finalize his brief—and then filed a copycat brief that evidenced no original research, thus making the request for an extension dishonest.  The court was also troubled that the attorney had requested sanctions with passages copied from his prior brief, turning what in the court’s view should have been a fact-specific issue into boilerplate.7

Ultimately, whether a California court would necessarily sanction copying other sources without attribution, much less the attorney’s own briefs, remains unclear—absent other ethical issues: e.g., direct misrepresentations or requesting sanctions without factual basis.  Sufficient out of state cases, however, have sanctioned plagiarism 8 that we are well advised to take care to attribute sources carefully, as a matter of professionalism as well as ethics.  And, when borrowing from prior work, tailor the arguments carefully to the current case—and never represent that the copied work was so difficult and time consuming that it warranted a time extension.

- Leah S. Strickland, Solomon Ward Seidenwurm & Smith, LLP

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**

1 Rule of Professional Conduct 5-200 and 3-110(a). 

2 Case No. 11-cv-05413-DRH-ARL (E.D.N.Y. Feb. 21, 2013).

3 Slip Op. at p. 20, 20 n.9.  While the court sanctioned the attorney, it denied the opposition its request for attorneys’ fees because “submission of a plagiarized Opposition constituted an affront to the Court – not to defendants.”  Slip Op. at p. 21.

4 Slip Op. at 17, 17 n.6. 

5 Slip Op. at p. 18-19.

6 (2011) 201 Cal.App.4th 267.

7 Id. at 293-94.

8 See U.S. v. Bowen, 194 Fed.Appx. 393, 402 n.3 (6th Cir. 2006) (disapproving of the “outright plagiarism” of a judicial opinion without citing the opinion); United States v. Lavanture (3d Cir. 2003) 74 Fed.Appx. 221, 223, fn. 2 (same); Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Lane, 642 N.W.2d 296 (Iowa 2002) (sanctioning attorney for filing a brief that copied heavily from a law review article).