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Copying in Brief Writing: Where Is the Line?

magnet attracting lightbulbs, illustrating deal of copying or plagiarism
magnet attracting lightbulbs, illustrating deal of copying or plagiarism

For litigators, copying is a tricky thing. Every lawyer has at least enough familiarity with the principles of plagiarism to know that, as a general rule, one should not copy another person’s words and offer them as one’s own. Lawyers also generally know enough about copyright law to realize that extensive use of someone else’s work—even with attribution—can be problematic. But originality is not exactly a virtue in brief writing. It’s quite the opposite, in fact. The point of most legal briefs is to persuade a court that the applicable precedent offers straightforward support for the desired outcome, ideally without need for much innovative interpretation or extension. When a court calls an argument “imaginative,” it tends to be the kiss of death. See, e.g., Matter of Power Auth. v. Williams, 60 N.Y.2d 315, 326 (1983); accord AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 380 (1999).

Are the rules about copying different in brief writing than elsewhere? To some extent, yes. But litigators should not mistake that for a license to copy freely. The accepted practices may be different, but there are limits.

Plainly, a certain amount of copying is valued (and indeed necessary) in brief writing. Briefs quote liberally from authority because arguments that are expressly based on the words of a judge, legislator, treatise writer, or other source that is not the lawyer writing the brief are generally considered the most persuasive. As well, lawyers often “recycle” arguments they or their colleagues have written before. As long as the language is adjusted and tailored to the extent necessary to fit the case at hand, this is considered efficient and desirable. And one would be hard pressed to find an attorney who minded seeing language from her brief imported into the judge’s opinion—with or without attribution. In fact, most attorneys feel a sense of pride when this happens.

But copying in brief writing can go too far. Because courts have found that legal briefs are subject to copyright protection, large scale copying of another lawyer’s brief may be actionable as infringement. See Newegg v. Ezra Sutton, P.A., 2016 WL 6747629 (C.D. Cal. Sept. 13, 2016); accord White v. West Publishing, 29 F. Supp.3d 396 (S.D.N.Y. 2014) (upholding a fair use defense). Moreover, plagiarism in legal briefs can lead to sanctions. In Lohan v. Perez, 924 F. Supp. 2d 447 (E.D.N.Y. 2013), for example, counsel was sanctioned for conduct that included filing a brief that consisted “almost … entirely” of material “taken from unidentified, unattributed sources”—conduct that the court found “unacceptable and … sanctionable pursuant to the court’s inherent powers” even though one of those “sources” was apparently “a legal memorandum plaintiff filed in an entirely different case.” 924 F. Supp.2d at 458 n.6; id. at 460. The Lohan court opined that “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 ‘engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.’” Id. at 460 n.9 (alteration in Lohan).

Similarly, in Dewilde v. Guy Gannett Publishing Co., 797 F. Supp. 55, 56 n.1 (D. Me. 1992), the court found that the plaintiff’s brief in opposition to summary judgment “plagiarized Defendants’ memorandum in support of the motion in significant part,” adding: “Plaintiff’s counsel has inserted his own facts and conclusions, contrary to those written by defense counsel, but it is clear that he did no legal research and remained content to let defense counsel do all the work.” The court determined that the claims were frivolous, granted summary judgment dismissing the complaint, and awarded the defendants their attorney fees “charged against the Plaintiff’s attorney”—noting that this outcome was “particularly fitting” inasmuch as, “since Plaintiff’s counsel appropriated the work of defense counsel, submitting it as his own, he should, at the very least, pay for the services unwittingly rendered.” 797 F. Supp. at 64.

It appears, however, that to be truly sanctionable plagiarism in a legal brief must be not only extensive, but also accompanied by something more. In Lohan, the offending submission was so heavily copied that it failed to address the “salient points” in the case, and the copying was aggravated by other misrepresentations to the court. See 924 F. Supp. 2d at 458 and n.6; id. at 459-60. In Dewilde, the court’s comments about plagiarism were ancillary to a finding that the claims themselves were frivolous. See 797 F. Supp. at 63-64. Other cases where lawyers have been sanctioned for copying in their briefs have likewise involved additional misconduct. See, e.g., In re Ayeni, 822 A.2d 420 (D.C. App. 2003) (attorney disbarred for conduct that included filing a brief “that was virtually identical to the brief filed earlier by his client’s co-defendant” and submitting “a voucher for payment asserting that he expended more than nineteen hours researching and writing the brief”); In re Steinberg, 206 A.D.2d 232 (1st Dept. 1994) (attorney censured for conduct that included submitting memoranda written by someone else as his writing samples in connection with his application for a panel of assigned criminal defense counsel); accord In re Mundie, 453 Fed. Appx. 9, 16-19, 20 (2d Cir. 2011) (attorney reprimanded based on conduct that included copying a brief written by another attorney without adequately adjusting it to address the particular circumstances of the case; conduct amounted to an absence of care that “had the potential to prejudice his client”).

Exactly where is the line? The New York City Bar Association’s Committee on Professional Ethics grappled with this issue last summer in Formal Opinion Number 2018-3, where it answered the question: “Is it a violation of Rule 8.4(c) which prohibits ‘conduct involving dishonesty, fraud, deceit or misrepresentation’ for a lawyer to copy verbatim from other sources without attribution when drafting a litigation filing?” Following an extensive survey of case law (including most of the cases discussed above, together with many others) and other authorities, the Committee concluded that such copying “is not per se deceptive” and does not in itself violate any ethics rules. The Committee emphasized, however, that its conclusion was “based on its view of the norms of litigation practice and the purpose of litigation filings” and its belief that there is no “clear judicial consensus that copying without attribution is per se deceptive.” “Over time,” the Committee noted, as courts “continue to express opinions on the propriety of” such copying, “it is possible that these decisions will coalesce into” such a consensus. “If that consensus emerges,” the Committee cautioned, “we would need to revisit this opinion.” The Committee also stressed that it did not “condone copying source material without attribution in litigation filings,” and that “many Courts … plainly believe” that such conduct is sanctionable.

At first blush, the Committee’s conclusion—that copying someone else’s work without attribution does not in itself appear to violate the ethics rules, but that its view on this might change and that such copying might meanwhile subject lawyers to sanctions—seems unsatisfying. It does not give the kind of comfort or assurance one might hope for in an ethics opinion. But it is important to recall that the question the Committee was answering was whether conduct that would in any other context be condemned as plagiarism violates the ethics rules. The question itself is somewhat shocking. The Committee’s conclusion is, in essence, that copying someone else’s work without attribution probably does not violate the rules if that is all the lawyer does (that is, if the conduct is not accompanied by other misdeeds such as an attempt to charge for work the lawyer did not actually do, or a failure to “tailor the brief to the situation before the court”), but it should be avoided.

The notion that a lawyer who copies someone else’s work without attribution acts at his or her peril is hardly an unreasonable one. But by stopping short of condemning the practice, Formal Opinion 2018-3 leaves room for it to continue. Perhaps this also leaves room for development of the “clear judicial consensus” the Committee found lacking. But it might be better if lawyers did not provide the fodder for such a “consensus,” even if that means the question continues to go without a clear answer.

While a lawyer’s job in brief writing is to fashion arguments based largely on precedent, relating that precedent to the case at hand is in fact a creative process. Doing it well is the skill of our craft. A lawyer who skips that step in favor of simply copying someone else’s work without permission or attribution does the profession a disservice, regardless of whether or not that conduct rises to the level of an ethics violation.

Adrienne B. Koch is a litigation partner with Katsky Korins in New York. Timothy J. Holland, an associate with the firm, assisted with this article.