Lawyers are guided by a codified, and extensively interpreted, set of rules of professional ethics. Surprisingly, none of these rules defines or specifically addresses the issue of plagiarism. When drafting briefs, lawyers routinely rely heavily on their, or their law firm’s, prior briefs. Lawyers are often told not to “reinvent the wheel” and encouraged to use prior briefs in order to be more cost effective. When a lawyer writes a winning brief for one case, it would seem a waste not to use that brief when drafting a later brief involving similar claims or legal arguments. However, recent cases and ethics opinions have demonstrated that this practice comes with risks.
The availability of electronic databases makes it easy for a court or opposing counsel to identify unattributed sources and argue that the lawyer who drafted the brief attempted to deliberately deceive the court. And while copying source material without attribution in litigation filings is not per se a violation of a lawyers ethical obligations, many courts disapprove of extensive copying in briefs. (New York City Bar Formal Opinion 2018-3). In addition, a lawyer who cuts and pastes into their legal briefs without regard for whether the brief is responsive to the complaint or opposing briefs faces the risk of a malpractice claim.
Motion and brief banks, which provide sample briefs to serve as guides or templates, warn users against using their samples without personally validating the law and other legal authorities cited in the samples. Ignoring these warnings and submitting a sample with minimal changes may be seen by a court as a violation of Federal Rule of Civil Procedure 11 in which a lawyer, by signing, certifies that to the best of the attorney’s knowledge, information, and belief that “the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” A lawyer using a sample should be sure to review it carefully to determine whether the sample author has appropriated from a treatise or article without citation, as courts have found citing these sources without attribution to be an ethical violation.
In Formal Ethics Opinion 2008-14, the North Carolina State Bar opined that lawyers may use the same legal arguments advanced in other briefs, and may even do so verbatim, without attribution to the original author or obtaining consent. However, it cautioned: “When using the work of another, the lawyer must still provide competent representation. . . .This means that the lawyer must verify any citations in the excerpt to insure that the content and interpretation of caselaw, statute, and secondary sources is correct.” As a practical matter, it is often the case that the “cut and paste” approach to the practice of law is inconsistent with the duty of competence and leads to sloppy work, poor results, and ultimately, the risk of malpractice.