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Legal Ethics

Law Firm Worker Tells Advice Columnist of Plagiarizing Lawyer

Posted Aug 12, 2009 7:43 AM CST
By Debra Cassens Weiss

Updated: An advice columnist advises a law firm worker to blow the whistle on a lawyer in her firm who passes off the work of others as his own.

The worker wrote Washington Post columnist Lily Garcia during an online chat.

“There is an attorney in our law firm who is running another business out of our offices,” the worker says. “To make up for lost time and to keep up appearances, he frequently plagiarizes work by other attorneys in different law firms around the country by submitting it as his own.”

The employee, who was transferred to a new lawyer after complaining about the plagiarizing lawyer, is identified as writing from Pittsburgh. The worker got a poor performance review from the lawyer, who still hasn’t stopped his copying. “At any given time, I see published papers from other law firms he has printed out from the Internet which will soon bear his name as well as materials from his other business,” the worker writes.

Garcia says the worker could contact the ABA to find out if the lawyer is violating ethics rules. “Meanwhile, you could take it upon yourself to notify the people whose work this attorney has plagiarized,” Garcia says. “I imagine that this would go a long way toward getting the attention of your firm's leadership. However, you should carefully gauge whether you are willing to take the risk that you will be retaliated against for your actions.”

ABA ethics counsel George Kuhlman says the ABA doesn’t investigate alleged ethics violations by lawyers. That’s the job of state disciplinary agencies. “They are the people who have the authority to pick up the phone and test veracity of the claims,” he said. “And that’s how you come up with a fair evaluation of whether something bad is occurring.”

That said, Kuhlman was willing to talk about what ethics rules might come into play. He pointed to Rule 8.4 of the ABA Model Rules of Professional Conduct, which has been adopted in some form by all of the states. Rule 8.4 is a broad conduct rule that says lawyers shall not participate in conduct involving fraud, deceit, dishonesty or misrepresentation.

“There you have it—that’s what the issue is,” Kuhlman says. “Someone is claiming that the lawyer in question is misrepresenting someone else’s work as his own work.”

Other ethics rules could also come into play, depending on whether the lawyer is billing for the plagiarized work and whether the fee is justified, he said.

Updated on Aug. 13 to include comments from George Kuhlman.

Comments

1.

B. McLeod
Aug 12, 2009 9:34 AM CST

Here’s a better idea - stay out of this guy’s way until he eventually brings himself down with his own stupidity.  It is not the duty of a firm staffer to police the misconduct of every sleazebag jerk he or she encounters within the firm.  It is not the staffer’s problem.  This particular lawyer sounds like the proverbial train wreck looking for a place to happen.  Stay away from the tracks.

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2.

poorly trained chimp
Aug 12, 2009 12:40 PM CST

does anyone have a ‘strike note of issue’ motion I can copy and paste?

This is a non-issue

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3.

brian in Middle River Md
Aug 12, 2009 3:09 PM CST

I thought it was general practice to build arguments from previously set precedents and similar case arguments and as such plagiarism would not apply as long as all Case Opinions Referenced are duly noted. IBID…......

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4.

B. McLeod
Aug 12, 2009 5:47 PM CST

Yes.  I think the staffer is suggesting something more here, along the lines of the lawyer just searching for research or marketing pieces on issues he is supposed to be working, then switching in his name for the actual author’s name.  Remembering the case of Jeff Zander from some years back, if I was a partner in this firm, I would be checking to verify this guy’s identity and licensure.  I think the firm should consider the possibility that the reason he is not doing original research may be that he does not know how.  Also, if the firm is providing these materials to firm clients, the firm itself may well be entangled in a thicket of copyright infringement.

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5.

Philip
Aug 12, 2009 9:26 PM CST

How could she even now “at any given time” see materials “he has printed out from the internet” unless she is snooping in what he’s doing?

A litigator’s work involves a lot more than brief writing. If he’s really slacking, it will show in the inability to justify hours billed on client reports, phone calls, depos, and the other matters that make up most of the daily grind. Most if not all litigators do a lot of cut-and-paste from their firm’s prior briefs, and even (gasp) the internet. Why, I hear there are even commercial services where one can turn for copies of briefs and court opinions.

She sounds like someone who disliked the man to start with, and didn’t understand what she was seeing; rather than let her go when she caused a scene, they transferred her. He probably didn’t like her; maybe he’s lackadaisical, but maybe he can get away with it because he brings in clients or somebody upstairs just likes him. So what? She should leave well enough alone and stop worrying about what he prints from the internet or who she thinks he should cite. The “advice” to carry on her crusade will result in this poor lady’s termination.

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6.

mythago
Aug 12, 2009 10:25 PM CST

Phillip @5 - if you read the linked article, the staffer worked FOR him until she complained, then was transferred away and the firm did nothing. She’s probably a secretary or a paralegal. What makes you think she would have to ‘snoop’ to know about his habits? Paralegals have a code of ethics, y’know, and she may be risking a lot of trouble for not reporting attorney misconduct.

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7.

B. McLeod
Aug 13, 2009 7:37 AM CST

Besides, there is no indication he is a “litigator.”  Indeed, I would conclude from what is being described that he is not a litigator.

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8.

Philip
Aug 13, 2009 9:08 AM CST

6/7, if you’d read my comments you’d be aware I knew she was transferred from working for him. What you seem unable to grasp is the odd fact that she no longer works for him, but still claims to know what he’s printing from the internet.

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9.

mike
Aug 14, 2009 1:37 AM CST

Would Joe Biden be the lawyer in question?

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10.

Bush One
Aug 14, 2009 6:48 AM CST

Friends,
the impression I got was not that this attorney was doing copy and paste jobs with briefs (which is ok, as far as I understand it, and I do it just as much as any of you—-a good argument is a good argument, no one has ownership over that); but rather, printing out scholarly articles, taking chunks from each one, and saying he wrote a fancy schmancy smart-boy article.  That IS plagiarism.

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11.

kasey
Aug 14, 2009 7:03 AM CST

What I find frustrating is that the article does not really specify whether he was copying and pasting briefs or scholarly, published articles. Nor does the article specify what product he was in turn producing and “passing off” as his own—a brief, a submission to a law journal?  That those sorts of details were left out is a tad irritating ..

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12.

Yenrab
Aug 14, 2009 7:56 AM CST

Why did the article go out of the way to point out that the offending attorney is MALE?  Are men more likely to plagiarize than women?

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13.

Martha
Aug 14, 2009 8:02 AM CST

And don’t forget, she could be lying.

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14.

LOL Staff Member
Aug 14, 2009 8:12 AM CST

As we used to say at my prior Firm, “Why re-invent the wheel”.

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15.

nobody_special
Aug 14, 2009 9:07 AM CST

Don’t turn them in.  I did this on my way out the door once in an almost identical situation.  The company did nothing and instead ratted me out to the person.  Now I have an enemy hanging around out there, and the company didn’t even take any action.  Talk about stupid!!

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16.

Steve R
Aug 14, 2009 11:24 AM CST

I agree with poster # 11.  By definition, submissions to courts cannot be plagerism because courts are not law journals.  Their purpose is entirely different.

If the purpose is publication in a forum of ideas, it is obviously inappropriate to present the ideas of others as one’s own.  In court papers, who cares!  In fact judges don’t like papers that read like law review articles.  They want lawyers to “cut to the chase”. 

Rigorous citation that perfectly credits all sources of ideas or legal authority would also unnecessarily and unacceptably increase the cost of court papers.  All the judge wants, is to be able to easily access any original source material in order to verify attorney assertions without having to search for the source material’s location.

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17.

bg
Aug 14, 2009 10:57 PM CST

A bigger question is whether he is searching the internet for a half hour, putting his own name on something, then billing the client what it would have taken to actually do the work himself.  From the sound of it, it is articles and the like, rather than motions, that he is swiping. 

As for how does she know he is doing it if she no longer works for him, secretaries and paralegals talk.  And their favorite topic of gossip is attorneys, probably even more so than gossiping about each other.  I am sure she saw him printing it out when she worked for him - half the stuff any attorney in my office prints sits on the printer at least an hour before anyone fetches it, assuming they pick it up at all - and was probably even asked to help him in his alterations.

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18.

Sadi
Aug 15, 2009 7:12 AM CST

I don’t think anybody is considering the possibility that this lawyer might be using someone else’s work (be it copy paste, be it outright adoption of an entire document and changing the signature, et cetera) and then billing the client as if he spent the time to research applicable law and jurisprudence and then draft a coherent and thoughtful legal argument (which we know also takes time in drafting the initial document and review thereafter).  If this is the case, and for argument’s sake consider that the copying is acceptable, he would be overbilling the firm’s clients.

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19.

Kalifornia Arnold
Aug 15, 2009 10:09 AM CST

Some attorneys will do anything to win a case—-even tell the truth.

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20.

Philip
Aug 16, 2009 11:17 AM CST

16,

submissions to courts CAN be plagiarism, google the words “peter cannon plagiarism” for an example of a lawyer sanctioned by a bankruptcy court for copying a very long excerpt from a journal article in a brief without attribution- and to top it off, billed a client 25 hours for doing so.

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21.

Steven R
Aug 16, 2009 1:48 PM CST

20,

You make a fair point. 

Although for most state court submissions there is no danger of getting in trouble for “plagerism”, even state judges have to be more careful about possible plagerism than the attornies who practice before them, if their decisions are likely to be published. 

It nevertheless seems that the primary offence of the attorney in your example, was billing fraud (plus being a jerk) and that the plagerism was at most secondary to the offence.  In this era of computers it is always easy to verify source material quickly but judges want to be able to rely on attorneys rather than have to check up on them for cited authority.

It should have been obvious to the attorney that a Bankruptcy Court judge is likely to be familiar with or at have come across many journal articles that are topical, and that judges often have subspecialties that reflect the cases assigned to them.  In any case, without the billing fraud, I doubt the plagerism would have mattered. 

In state court, where I practice, cutting and pasting of relevent materials for motions oapers is routine (although the material to be cut and pasted onto new motion papers, generally credits the original source material if that material has been published).  State court judges’ decisions are of course sometimes published but most are not and this may also enter into how much an incomplete citation of authority may annoy the judge.

Thus it may be that judges in Federal Court (or any Appellate Court) are more rigorous than state court judges when it comes to attorney citation of written authority for their written submissions (since a given decision of theirs may also be more likely to be published).  They may heavily rely on the written submissions of attorneys for turning out their own published opinions quickly and fear being embarrasseed because they didn’t “cite check” the papers an attorney submitted to them, in order to avoid error or plagerism. 

Maybe the bottom line in all of this is to take the extra minute to fully cite the source material in your court submissions (not just the case citations contained in that source material) and of course to stay away from billing fraud, which in an era of computers is probably easy to pick up if someone has a reason to look for it.

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22.

Writing from Pittsburg
Aug 17, 2009 8:14 AM CST

20,

You make a fair point. 

Although for most state court submissions there is no danger of getting in trouble for “plagerism”, even state judges have to be more careful about possible plagerism than the attornies who practice before them, if their decisions are likely to be published. 

It nevertheless seems that the primary offence of the attorney in your example, was billing fraud (plus being a jerk) and that the plagerism was at most secondary to the offence.  In this era of computers it is always easy to verify source material quickly but judges want to be able to rely on attorneys rather than have to check up on them for cited authority.

It should have been obvious to the attorney that a Bankruptcy Court judge is likely to be familiar with or at have come across many journal articles that are topical, and that judges often have subspecialties that reflect the cases assigned to them.  In any case, without the billing fraud, I doubt the plagerism would have mattered. 

In state court, where I practice, cutting and pasting of relevent materials for motions oapers is routine (although the material to be cut and pasted onto new motion papers, generally credits the original source material if that material has been published).  State court judges’ decisions are of course sometimes published but most are not and this may also enter into how much an incomplete citation of authority may annoy the judge.

Thus it may be that judges in Federal Court (or any Appellate Court) are more rigorous than state court judges when it comes to attorney citation of written authority for their written submissions (since a given decision of theirs may also be more likely to be published).  They may heavily rely on the written submissions of attorneys for turning out their own published opinions quickly and fear being embarrasseed because they didn’t “cite check” the papers an attorney submitted to them, in order to avoid error or plagerism. 

Maybe the bottom line in all of this is to take the extra minute to fully cite the source material in your court submissions (not just the case citations contained in that source material) and of course to stay away from billing fraud, which in an era of computers is probably easy to pick up if someone has a reason to look for it.

OOPS, I guess I did it again!

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