Douglas E. Abrams (University of Missouri School of Law) has posted “Plagiarism in Lawyers’ Advocacy: Imposing Discipline for Conduct Prejudicial to the Administration of Justice“, Wake Forest Law Review, Forthcoming/University of Missouri School of Law Legal Studies Research Paper No. 2012-22. Here is the abstract:
In a recent high-profile prosecution, the federal district court criticized defense counsel for filing a post-trial brief that copied passages from previously published material without attribution. The court followed other recent decisions that, since about 2000, have chastised lawyers for briefs marked by plagiarism. Some lawyers had copied passages from earlier judicial opinions that rest in the public domain, and some lawyers (as in the recent prosecution) had copied passages from private sources that are subject to the copyright laws. In either event, courts have labeled lawyers’ plagiarism “reprehensible,” “intolerable,” “completely unacceptable,” and “unprofessional.”
The courts have found or intimated that counsel’s plagiarized submission violated Rule 8.4(c) of the ABA Model Rules of Professional Conduct, which states that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Perhaps because Model Rule 8.4(c)’s four proscriptions normally seem such natural fits, courts finding plagiarism have not yet explored application of Model Rule 8.4(d), which reaches lawyers who “engage in conduct that is prejudicial to the administration of justice.” Grounding professional discipline in both provisions would not be redundant because under the ABA Standards for Imposing Lawyer Sanctions, a single act may violate more than one ethical duty and multiple violations would be relevant to the sanction imposed.
Lawyers’ plagiarism in briefs and other filings violates Model Rule 8.4(d) as conduct prejudicial to the administration of justice because this plagiarism creates a risk that the court’s written opinion itself will inadvertently plagiarize. A lawyer’s plagiarism can also distort the meaning and import of parties’ adversary argument by inducing the court to mistake the copied passages as products of the lawyer’s own thought processes, rather than as an uncompensated non-party’s analysis presumably helpful to the proponent.
A pdf copy of the paper may be downloaded via SSRN here.