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When is Copying OK in Legal Writing? When is Copying OK in Legal Writing?

Diane B. Kraft University of Kentucky College of Law, diane.kraft@uky.edu

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When is Copying OK in Legal Writing? When is Copying OK in Legal Writing?

Notes/Citation Information Notes/Citation Information Diane B. Kraft, When is Copying OK in Legal Writing?, B&B - Bench & Bar Magazine 30 (May 2013).

This commentary is available at UKnowledge: https://uknowledge.uky.edu/law_facpub_pop/5

? WHEN IS•

We all know that plagiarism is bad. We also

know that the point of legal writing is not

originality - in fact, it's the opposite. As Judge

Richard Posner has noted, "originality is not

highly prized in law.'" A transactional attorney

would be crazy to create completely new and

original language for every contract he drafts.

A litigator who relies on her original ideas

rather than on precedent in making her

client's case will lose.

What we don't always know is where todraw the linebetween acceptable andunacceptable copying of the work pro-duced by others in the practice of law.In other words, when is an attorney whocopies another's work following accepted

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practice, and when is that attorney plagia-rizing? Sometimes the line is clear, but of-ten it is not.

First, the easy calls:

It is almost certainly OK, and sometimeseven preferable, to copy or sign workthat is not entirely your own when:

• You're using language from a formbook.'

• You're using boilerplate language froma contract."

• You're using language from pleadingswritten by attorneys within your firmor organization.

• You're looking at pleadings written byattorneys both within and outside ofyour firm or organization to see how

OK IN LEGAL WRITING?By Diane B. KraftUniversity of Kentucky College of Law

other attorneys have handled similarIssues."

• You're signing pleadings written byother lawyers at your firm ororganization.5

• Your clerks write your judicialopinions.6

It is almost certainly NOT OK to copy ortake credit for work that is not your ownwhen:

You're copying large amounts ofmaterial from a treatise or articlewithout quotation marks and proper attri-bution. For example, in 2010 an Iowa bank-ruptcy court sanctioned an attorney whohad copied large sections of an article froma law firm website, verbatim and without at-tribution, into a brief he filed with thecourt.' In 2011, a federal district court inKentucky deemed "cutting and pasting"from Wikipedia, without attribution, to beplagiarism in violation of Rule 8.4 of theKentucky Rules of Professional Conduct. 8

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Apart from these relatively clear examples,the question of when copying isOK gets murkier.

It is unclear if copying or taking credit forwork that is not your own is OK when:

• You're using language from pleadingswritten by attorneys from other firmsor organizations, or from judicial opin-ions. Some authors and attorneys be-lieve that copying from briefs writtenby attorneys unaffiliated with one's lawfirm or organization is ethically ques-tioneble." Indeed, courts in numerousjurisdictions have sanctioned attorneysfor copying large sections of other at-torneys' briefs.'? On the other hand,the North Carolina State Bar has givenattorneys the green light to copy partsof pleadings." One author has sug-gested that "it is likely appropriate toborrow 'structure, rhetorical devices,apt analogies, and perhaps evenwell-turned phrases' in preparing abrief. It may even be appropriate inmany cases to copy verbatim 'routinematters involving established law, suchas the standard of review or well-estab-

lished points of substantive law.'''12However, a federal district court inPennsylvania rebuked an attorney forverbatim copying at length from courtopinions, including a one-pagestandard of review that "mirrors.with suspicious equivalence" one usedby a federal district court judqe."Similarly, the Sixth Circuit called it"completely unacceptable" when anattorney copied almost 20 pages ver-batim, without attribution, from a dis-trict court opinion." The line seems tobe the amount of language that hasbeen copied; when large amounts of abrief or other pleading are copied fromother pleadings or judicial opinionswithout attribution, most legal profes-sions consider it unacceptable.

• You're using language from non-plead-ings written by attorneys from otherfirms.1S Thirty-seven years ago, theKentucky Supreme Court wrote in afootnote to an opinion about a mort-gage that "[I]egal instruments arewidely plagiarized," and found "noimpropriety in one lawyer's adoptinganother's work, thus becoming the'drafter' in the sense that he acceptsresponsibility for it. "16However, whilecopying language from form booksis expected, copying documents suchas contracts, wills, and trusts from otherlaw firms is not uniformlysmiled upon."

The best practice, then, is to proceedwith caution when copying in legal writing.In Kentucky, it is probably acceptable tocopy non-litigation documents from othersources, provided you have taken care tomodify the documents to fit your clients'needs." On the other hand, when writingpleadings, do not copy large sections fromother documents, and always cite yoursources. Originality is not prized in legalwriting, but professionalism certainly is. B&B

1 Richard A. Posner, The Little Book of Plagiarism15 (2007).

2 E.g., Cooper J. Strickland, The Dark Side of Unat-tributed Copying and the Ethical Implications ofPlagiarism in the Legal Profession, 90 N.C. l. Rev.920,937 (2012); Carol M. Bast & Linda B.Samuels, Plagiarism and Legal Scholarship in theAge of Information Sharing: The Need for Intel-lectual Honesty, 57 Cath. U. L. Rev. 777, 804(2008); Douglas R. Richmond, Professional Re-sponsibilities of Law Firm Associates, 45 BrandeisL.J. 199,245 (2007); Judith D. Fischer, AvoidingPlagiarism in Legal Documents, Ky. Bench & Bar.May 2006, at 68.

3 E.g., Strickland, supra note 2, at 937; Jeanne L.Schroeder, Copy Cats: Plagiarism and Precedent58-61 (Benjamin N. Cardozo School of Law, JacobBurns Inst. for Advanced Legal Studies, Working

Paper No. 185, 2007).4 Brian Craig, Legal Briefs: Helpful But Also Haz-

ardous, 13 Persps: Teaching Legal Res. & Writing132 (Spring 2005).

5 Richmond, supra note 2, at 245; Schroeder, supranote 3, at 68-69.

6 E.g., Posner, supra note 1, at 20-23; Bast &Samuels, supra note 2, at 800; Catherine L. Fisk,Credit Where It's Due: The Law and Norms ofAttribution, 95 Geo. L.J. 49, 96 (2006).

7 Iowa Sup. Ct. Attorney Disciplinary Bd. v. Cannon,789 N.W.2d 756, 759 (Iowa 2010); Strickland,supra note 2, at 925-29. The court in Cannon wasparticularly irked that the attorney charged hisclient more than $5000 for preparing the largelyplagiarized brief.

8 U.S. v. Sypher, No. 3:09-CR-00085, 2011 WL579156, at *3 n.4 (W.o. Ky. 2011). The court alsogently reminded the offending attorney "thatWikipedia is not an acceptable source of legal au-thority in the United States District Courts."

9 E.g., Craig, supra note 4; Richmond, supra note 2,at 245-46; Judith D. Fischer, The Role of Ethics inLegal Writing: The Forensic Embroiderer, TheMinimalist Wizard, and Other Stories, Scribes J. ofLegal Writing, 2003-2004, at 104. In addition topotential charges of plagiarism, an attorney whocopies the work of other attorneys could be in-fringing on copyright, although the law on thisissue is not clear. Craig, supra note 4; Scott Moise.Rocket Docket: The Joys and Perils of OnlineCourt Documents, S.c. Law., May 2011, at 48;Bast & Samuels, supra note 2, at 805.

10 E.g. Moise, supra note 9, at 47.11 Strickland, supra note 2, at 938-39 (citing N.C.

State Bar, 2008 Formal Ethics Op. 14 (2009)). Ac-cording to the Ethics Opinion, "[a]lthough consentand attribution are not required, if a lawyer uses,verbatim, excerpts from another's brief and thelawyer knows the identity of the author of the ex-cerpt, it is the better, more professional practice,[sic] for the lawyer to include a citation to thesource. "

12 Strickland, supra note 2, at 947.13 Venesevich v. Leonard, No.1 :07-CV-2118, 2008

WL 5340162, at *2 n.2 (MD. Pa. 2008).14 U.S. v, Bowen, 194 F. App'x 393, 402 n.S (6th Cir.

2006)15 Strickland, supra note 2, at 938.16 Fed. Intermediate Credit Bank of Louisville v. Ky

BarAss'o, 540 S.W.2d 14, 16 n.2 (Ky. 1976);Moise, supra note 9, at 47; Bast & Samuels, supranote 2, at 804.

17 Strickland, supra note 2, at 938 n.128 (citing TerryLeClercq. Failure to Teach: Due Process and LawSchool Plagiarism, 49 J. Legal Educ. 236, 250(1999)).

18 Fischer, supra note 2, at 68.

,

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Diane Kraft is an assis-

tant professor of Legal

Research and Writing

at the University of

Kentucky College of

Law.

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