Write on
| Publication year | 2023 |
| Pages | 23 |
by Greg Johnson, Esq.
WRITE ON
Is There a Place for Plagiarism in Law Practice?
Legal writing professors are currently engaged in a spirited debate about the merits of plagiarism in law practice. This may surprise you because plagiarism—using the words of another without attributing the source—is a serious offense in law school and every other educational setting. Indeed, the admonition against plagiarism does not end in school: Courts have disciplined attorneys who plagiarize. Courts call plagiarism "reprehensible,"[1] "unethical,"[2]a "scarlet letter,"[3] and "wholly intolerable in the practice of law."[4] I am sure most of you reflexively agree that plagiarism is unethical and is just as unacceptable in practice as it is in school.
Yet, recently, legal writing professors are challenging us to rethink this basic assumption. These professors forthrightly and un-apologetically defend plagiarism in practice. Before explaining their thesis, I want to be clear at the outset that advocates of plagiarism do not seek to justify a stray missed citation, or a paraphrase that really should have been a quote. No, they defend wholesale copying of large parts of other attorneys' work product. For example, the centerpiece of Professor Andrew Carter's provocative article, The Case for Plagiarism, is the notorious story of an Iowa attorney who copied seventeen pages of an article on bankruptcy he found on a New York law firm's website into his nineteen-page brief without attributing the source.[5]After the bankruptcy court discovered the plagiarism, it chastised the lawyer and ordered him to enroll in a law school ethics class.[6] Then the Iowa Supreme Court publicly reprimanded the lawyer.[7] This would strike most lawyers as an impossible act to defend, but Professor Carter takes on the challenge. These bad facts make Professor's Carter's persuasive argument all the more remarkable.
How do he and the other professors supporting plagiarism in practice convince the reader of their thesis? The appealing angle they pursue is that using the work of other authors can enhance access to justice. Their theory is that lawyers might be more inclined to represent indigent and other clients who cannot afford to pay for costly original research and writing if the lawyers can simply adopt the work of others. Large law firms have motion and brief banks that associates in the firm use repeatedly, the thinking goes, so why not allow solo practitioners and lawyers desiring to represent the interests of the less fortunate to use the work of others in the same manner to even the playing field. Professor Carter summarizes the argument succinctly: "simply put, plagiarism saves time and money."[8]
Access to justice is a serious problem in Vermont. The Vermont Supreme Court, the Vermont Bar Association, Vermont Legal Aid, and other organizations serving at-risk clients have all recognized this growing problem and have taken steps to address it. Together, they formed the Vermont Access to Justice Coalition, which submitted a Report to the Vermont Legislature in 2020 calling for more funding to provide legal assistance for low-income communities.[9] Given the "justice gap" between those who need legal assistance and those who can afford it, an argument for plagiarism based on access to justice may be appealing to those who care about providing representation to low-income communities. If lawyers can take on more pro bono work by using the work of other lawyers, then perhaps we should be encouraging plagiarism, not punishing it.
The pro-plagiarism scholarship is thought-provoking. It "invites us to rethink core values and reprioritize competing interests."[10] The scholarship addresses concerns about plagiarizing in practice thoroughly and convincingly. The arguments in favor or plagiarism are persuasive, as I will explain below. But, ultimately, I remain conflicted by the claim that lawyers should be allowed to borrow the work of others to improve access to justice. Though advocates insist that plagiarizing does not violate any rules of professional or ethical conduct, I am not entirely convinced.
In this column, I will first present the proplagiarism argument in the best light, for it has many attributes. I will then explain my hesitancy at fully embracing the argument. In sum, allowing lawyers to plagiarize the work of others—even in the name of access to justice—implicates the professional and ethical values of competency, candor to the court, and integrity. The purpose of this column is to start a conversation with the bench and bar about whether plagiarism should be allowed—and even encouraged. I am interested in hearing the views of judges and practitioners—and needy clients—as I wrestle with my own divergent opinions on the topic.
Arguments in Favor of Plagiarism in Law Practice
The pro-plagiarism argument begins with the unassailable premise that the "legal profession was built on borrowing."[11]Lawyers frequently use legal forms. In fact, the Vermont Judiciary encourages the use of forms, with literally hundreds of forms available for use free-of-charge in its online "Forms Library."[12] With a legal system based on stare decisis, "an expectation of plagiarism is baked into our common law system."[13] Originality is not a prized value in law practice. Instead, so the argument goes, a lawyer should prioritize the legal and financial interests of their client over any pride in authorship. In their forthcoming...
To continue reading
Request your trial