Something Bad in Your Briefs
2013; Cumberland School of Law; Volume: 37; Issue: 2 Linguagem: Inglês
ISSN
0160-0281
Autores Tópico(s)Legal Systems and Judicial Processes
ResumoIn a profession heavily driven writing, is an ethical issue that plagues legal community. The legal profession generally views as unethical, but often sends mixed messages condemning it in some settings, but not others. In this short Commentary, Professor Underwood discusses ethical implications of in legal writing. A recent post on Above Law' brought back a memory of a § 19832 case I defended almost thirty-five years ago. The Above Law post reported that Lindsay Lohan's was fined $750 for in a brief.' The opinion in case cited judge's to punish such misconduct, but also alluded to how such misconduct would likely be reprehensible under Rule 8.4 of New York Rules of Professional Conduct.' In my old case, I was defending a county sheriff, who, along with several other officers, was accused of mistreating a teenage malefactor. Being an enthusiastic new member of bar, I ' B.S. (1969), The Ohio State University; J.D. (1976), The Ohio State University College of Law. Richard Underwood is Spears-Gilbert Professor of Law at University of Kentucky College of Law, and a co-author of MODERN LITIGATION AND PROFESSIONAL RESPONSIBILITY HANDBOOK (2d ed. 2001), and TRIAL ETHICS (1988). ' ABOVE THE LAW, http://abovethelaw.com (last visited Nov. 5, 2013). 2 42 U.S.C. § 1983 (2011) (providing for civil redress when deprived of constitutional or federal statutory rights). Joe Patrice, Non-Sequiturs: 02.22.13, ABOVE THE LAW (Feb.22, 2013, 5:14 PM), http://abovethelaw.com/2013/02/non-sequiturs-02-22-13 (citing Eriq Gardner, Lindsay Lohan Loses Lawsuit Against Pitbull, BILLBOARD (Feb. 22, 2013, 1:52 AM), http:// www.billboard.com/articles/news/1 549724/lindsay-lohan-loses-lawsuit-againstpitbull); see Lohan v. Perez, 924 F. Supp. 2d 447, 460 (E.D.N.Y. 2013). Lohan, 924 F. Supp. 2d at 460; see also id. at 457 (The court has inherent power to sanction parties and their attorneys ... where party or attorney has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. (quoting Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78 (2d Cir. 2000) (alterations in original)). ' See id. at 460 n.9 (citing In re Steinberg, 620 N.Y.S.2d 345 (N.Y. App. Div. 1994) (per curiam) (ordering public censure for submission of plagiarized memoranda as writing sample in support of an employment upgrade application); N.Y. RULES OF PROF'L CONDUCT R. 8.4 (2013)). 1 found it amusing that opposing counsel in Lohan tried to pile on and get sanctions under Rule 11. See id. at 460. The court was having none of that, noting that affront was to court and not opposing party. Id. at 460-61. AMERICAN JOURNAL OF TRIAL ADVOCACY worked up a motion for summary judgment supported a lengthy and compelling memorandum. A week or so after filing my masterpiece,6 I received a call from counsel for one of other defendants. He told me he was much impressed my work, and asked if he could borrow from it. Flattered, I said sure. Days later, I received a copy of his filing. He simply copied my work word-for-word and slapped his name on it. I was bemused and mentioned this to one of young partners at my firm. He shrugged it off with a smile, observing that plagiarism is highest form of flattery, or something like that. I was too new to game to ask obvious question: What did he bill his client? I have long had sense that lawyers do not think much about this this sort of thing. Indeed, when my colleagues and I have struggled in past with cases in law school environment,' we have encountered what can only be called indifference on part of lawyers participating in proceedings.' The Lohan case got me wondering if there was any law on out there that should be brought to attention of practitioners and legal writing instructors. No surprise-there is law out there.' 6 The motion was granted. ' If you are interested in subject, I recommend following articles: Robert D. Bills, Plagiarism in Law School: Close Resemblance of Worst Kind?, 31 SANTA CLARA L. REV. 103 (1990); Karla H. Fox, Due Process and Student Academic Misconduct, 25 AM. Bus. L.J. 671 (1988); Ralph D. Mawdsley, Plagiarism Problems in Higher Education, 13 J.C. & U.L. 65 (1986); Patsy W. Thomley, In Search of a Plagiarism Policy, 16 N. KY. L. REV. 501 (1989); Debbie Papay-Carder, Comment, Plagiarism in Legal Scholarship, 15 U. TOL. L. REV. 233 (1983); Ron Coleman, Seeing Double, STUDENT LAW., Feb. 1988, at 6. For an entertaining read (really!) on subject of plagiarism, see also THOMAS MALLON, STOLEN WORDS: FORAYS INTO THE ORIGINS AND RAVAGES OF PLAGIARISM (1989). ' Students charged with honor code violations sometimes lawyer up. More than one has lectured us on how there is no such thing as in law practice. 9I should note as an aside that term is thrown about rather carelessly some. For example, in Castrataro v. Urban, 802 N.E.2d 689 (Ohio Ct. App. 2003), appeal denied, 807 N.E.2d 368 (Ohio 2004), appellant rather foolishly complained that trial court had abused its discretion and showed bias and prejudice by constantly making plagiarized statements throughout its discretion [sic] identical to defendant's motion for summary judgment and citations which are exactly identical to defendant's motion for summaryjudgment. 802 N.E.2d at 695 (alteration in original). The appellate court wryly observed that the fact that trial court may have cited same cases in its decision as appellee cited in his motion . . . merely indicates that trial court found such cases to be relevant. In another case, a federal magistrate dismissed a pro se petition which alleged that his lawyer's plagiarized brief amounted 370 [Vol. 37:369 SOMETHING BAD IN YOUR BRIEFS? In some reported opinions, trial judge or appellate judges are taking a to task, not so much for as for shoddy work.0 For example, before affirming a conviction for first-degree murder, Supreme Court of Indiana dedicated several introductory paragraphs of its opinion to addressing counsel's plagiarized brief, which contained lengthy passages from American Law Reports and other sources, lifted word for word quotation marks, indentation or citation. The opinion uses term plagiarism, but court seemed most concerned with brief writer's disregard of an appellate rule relating to proper briefing: [t]o place all this conglomeration ofuncited material in a Brief is an imposition on Court.... A brief is not to be a document thrown together without either organized thought or intelligent editing on part of brief-writer. 2 In another instance, Second Circuit referred a case to court's Committee on Admissions and Grievances partly on the issues of whether [the lawyer] engaged in plagiarism, whether he violated his duties to his client and Court presenting facts and argument that did not bear on issues in his case, and whether he charged his client fees for services which he did not render. The had gotten permission from another to share a brief' intending to adapt ... Brief to facts of his case. 4 In end, Committee concluded that use of shared brief did not amount to plagiarism. The court nevertheless reprimanded for his shoddy work. to ineffective assistance of counsel. Thurman v. Allard, No. 01 Civ. 8746(GWG), 2004 WL 2101911 (S.D.N.Y. Sept. 22, 2004). '0 In process of researching this little piece, I also came across some discussion of rule-based sanctions and contempt for inflammatory and otherwise inappropriate pleadings and written material. See, e.g., Judith D. Fischer, Incivility in Lawyers' Writing: Judicial Handling of Rambo Run Amok, 50 WASHBURN L.J. 365 (2011); Marianne Vorhees, Best Practices: Dealing with Inappropriate Written Materials, IN D. CT. TIM ES (Feb. 6,2012), http://indianacourts.us/times/2012/02/best-practices-dealingwith-inappropriate-written-materials. ' See Frith v. State, 325 N.E.2d 186, 188-89 (Ind. 1975).
Referência(s)