Judicial opinions enjoy no copyright, so some may contend that copying from judicial opinions without attribution may not be plagiarism. paperThey would be wrong. Copying another’s writing is plagiarism even if there is no copyright and even if some sentences are added or deleted. Moreover, even copying multiple citations from another’s work is plagiarism.  In re Burghoff, 374 B.R. 681, 685 (Bankr. N.D. Iowa 2007), following Frith v. State, 263 Ind. 100, 325 N.E.2d 186, 188 (1975).

Plagiarism in brief writing is disfavored at best, and there are multiple examples of judicial displeasure.

  • “Although Jackson’s brief does not cite to this decision, its argument directly tracks, and its language duplicates, large portions of the Davis opinion. See United States v. Davis, 864 F. Supp. 1303, 1305-09, appeal pending (No. 95-8057 11th Cir.); Brief of Defendant-Appellant at 12-18. We separate the merits of the issues raised from the conduct of counsel, but we do express our disapproval of a style of brief-writing that appropriates both arguments and language without acknowledging their source.”  United States v. Jackson, 64 F.3d 1213. 1219 n.2 (8th Cir.1995), cert. denied, 516 U.S. 1137 (1996).
  • “[I]t should be noted that Indiana’s brief consists of passages copied verbatim from the district court’s admirable opinion. Such parroting is hardly admirable brief writing.” Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir. 1997).
  • “Plagiarism is unacceptable in any grammar school, college, or law school, and even in politics. It is wholly intolerable in the practice of law.  The court has obviously disregarded the memorandum submitted by Plaintiff’s counsel, first for its untimely filing under Local Rule 19 and second, because it does not represent any additional contribution on the part of plaintiff’s counsel to the court’s understanding of the law.”  DeWilde v. Guy Gannett Pub. Co., 797 F. Supp. 55, 56 n.1 (D. Maine 1992).

Plagiarism is recognized as wrong even if committed by the court.  Rankin v. State, 953 S.W.2d 740, 746 n.3 (Tex. Crim. App. 1996) (Baird, J., dissenting) (“Clearly, the majority did not engage in any independent research or analysis of this issue. The majority opinion is nothing more than a restatement of the dissent in the Court of Appeals. [citations omitted] However, the dissent is not cited in the majority opinion. Such plagiarism is shameful and serves only to embarrass this Court.”).   As a practical matter, only an unusually brave and foolhardy attorney, or perhaps one ready to retire, would confront a court on this point.   Richmond, Unoriginal Sin: The Problem of Judicial Plagiarism, 45 Ariz. St. L.J. 1077 (2013); see Dursht, Judicial Plagiarism: It May Be Fair Use But Is It Ethical?, 18 Cardozo L. Rev. 1253 (1996).

Once recognized, plagiarism can readily result in attorney or judicial discipline, based on the dishonesty and misrepresentation inherent in the practice.  E.g.,  Iowa Supreme Court Bd. of Professional Ethics and Conduct v. Lane, 642 N.W.2d 296 (2002); see Abrams, Plagiarism in Lawyers’ Advocacy: Imposing Discipline for Conduct Prejudicial to the Administration of Justice, 47 Wake Forest L. Rev. 921 (2012).  See also Underwood, Something Bad in Your Briefs?, 37 Am. J. Trial Advoc. 369 (2013); Recent Developments. The Dark Side of Unattributed Copying and the Ethical Implications of Plagiarism in the Legal Profession, 90 N.C.L. Rev. 920 (2012).

Image courtesy of Flickr by Sebastien Wiertz (creative-commons license, no changes made).