Full Disclosure: I make no claim to originality.
what has been done will be done again;
there is nothing new under the sun."
Ecclesiastes 1:9
Plagiarism is the act of using someone else's words or ideas without giving them credit. It can be intentional, like buying a paper online, or unintentional, like forgetting to include a source in a bibliography. Plagiarism is a severe charge in academia and professional settings and can result in consequences such as failing grades, academic probation, or expulsion. This post does not discuss the issue of using copyrighted works, with or without attribution.
Summary - Ethical Implications of Plagiarism in Legal Filings:
Whether plagiarism is an ethical breach in the legal profession is complex. Unlike academic papers, legal documents aim to persuade and are valued for their effectiveness rather than originality. Here, efficiency is often prioritized over novelty.
Some argue that using unattributed language from other sources in legal filings can be inherently deceptive, violating ethical rules against dishonest conduct. Cases like Iowa Supreme Court v. Cannon highlight the seriousness of these violations, describing extensive copying without attribution as "misrepresentation."
Conversely, the New York City Bar Association's Ethics Opinion 2018-3 argues that legal briefs are not expected to reflect original thought to the same extent as academic papers. Here, the value lies in the arguments' persuasiveness, not originality.
The Distinct Nature of Legal Writing:
Legal writing is distinctly different from academic writing. It does not aim to add new ideas to the discourse but to effectively argue a client's position using existing laws and precedents. As such, using established arguments and language is common and often necessary.
Different Sources, Different Standards:
The ethical considerations of copying depend on the nature of the copied material. Using language from published articles without attribution is viewed more seriously than using boilerplate legal language from previous briefs. The former involves depriving original authors of credit for their creative and intellectual work, which can impact their professional recognition and advancement.
The Risks of Over-Reliance on Copied Material:
While copying itself is not always an ethical violation, excessive reliance on unattributed material can indicate a lack of professionalism. It may suggest incompetence or a lack of diligence, as the copied material may not perfectly align with the case specifics, leading potentially to legal and ethical repercussions.
Key Issues:
The rapid development of artificial intelligence drafting tools in the legal world adds many novel considerations to explore.
There are differing perspectives on whether plagiarism by lawyers in legal filings should be considered an ethical violation. These are a few key issues:
1. Whether copying language from other sources without attribution in legal briefs and filings is inherently deceptive and dishonest conduct that violates ethical rules like Rule 8.4(c), which prohibits "dishonesty, fraud, deceit or misrepresentation."
2. Is legal writing fundamentally different from academic writing in terms of expectations around originality and attribution? Failing to cite sources, even for paraphrased ideas, is considered plagiarism in academia. However, legal briefs aim to persuade rather than present original ideas. Lawyers are obligated to prioritize efficiency for the client over original expression.
3. Should copying without attribution from different sources be treated differently ethically? Failing to cite language from published articles and judicial opinions may be more problematic than recycling language from one's prior work or that of other attorneys. Recognition for their influence is essential to an academic's career advancement. The number of times an academic's works are cited is a measure of an academic's influence. An attorney's prior briefs are not typically a source of professional recognition. A published law review article is different from a court pleading.
4. Whether attorney plagiarism, even if not an automatic ethical violation, should still be discouraged as it can demonstrate a lack of competence and diligence if done sloppily without tailoring the copied material to the facts at hand. It may violate other ethical rules beyond 8.4(c).
5. How does an attorney's use of AI-generated text relate to the issues of lawyer ethics and plagiarism?
6. How does recognizing and respecting the rights of another human's original work compare to using the output from an artificial intelligence tool? What are the moral dimensions of using AI servants?
While many courts and commentators have condemned extensive copying without attribution as plagiarism, there does not appear to be a clear consensus that it is always an ethical violation from a professional responsibility standpoint, at least not to the same degree as in academic writing — context matters. Efficiency is valued, and originality is not the ultimate goal. However, attribution is still a best practice and a way to avoid allegations of deception or incompetence. Careful use of limited quotes or paraphrasing key ideas, with citations when appropriate, threads the needle between efficiency and integrity. However, the verbatim copying of large sections of published works without attribution crosses an ethical line for many — the details and degree matter in making it rise to the level of an ethical breach.
Discussion:
1. Is copying language from other sources without attribution in legal briefs and filings inherently deceptive?
There are valid arguments on both sides of this issue, but I don't believe copying language without attribution in legal filings is inherently deceptive and an automatic violation of Rule 8.4(c) in all cases.
Those who argue it is inherently deceptive point to cases like United States v. Sypher, No. 3:09-CR-00085, 2011 WL 579156, at *3 n.4. when District Judge Charles R. Simpson III denied the defendant's posttrial motions seeking a new trial, the court criticized her lawyer for writing a brief that "appear[ed] to have cobbled much of his statement of the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site. . . [S]uch cutting and pasting, without attribution," warned Judge Simpson, "is plagiarism."
According to the The Association Of The Bar Of The City Of New York Committee On Professional Ethics Formal Opinion 2018-3: Ethical Implications of Plagiarism in Court Filings:
"Rule 8.4(c) of the Rules provides that "[a] lawyer or law firm shall not: . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Although, as detailed below, courts have invoked Rule 8.4(c) to discipline lawyers who plagiarize in academic settings, we recognize that litigation filings serve a different purpose. Unlike academic papers (or writing samples), which purport to reflect the author's original work and analysis, legal briefs are submitted to present an argument on behalf of a client, and their value derives from their persuasiveness, not from their originality of thought or expression. A lawyer's signature on a brief is not a representation of authorship, much less of sole authorship, but rather a commitment to take responsibility for the contentions in the brief and an implied representation that the brief is not frivolous. For these reasons, we conclude that copying from other writings without attribution in a litigation filing is not per se deceptive and therefore is not a per se violation of Rule 8.4(c)."
Litigation filings aim to advocate for the client's position as effectively and efficiently as possible. Reusing tried-and-true arguments, even verbatim, can serve those goals. While citations are recommended, a brief is not held out as an original academic work such that the absence of citations is inherently deceptive."
That said, context matters greatly. Directly copying significant passages from published opinions and articles without attribution is more problematic than reusing boilerplate from one's prior briefs. And even where not deceptive, sloppy copying without tailoring the text can violate ethical duties of competence and diligence.
Prudent attorneys should use unattributed copying carefully and thoughtfully. Paraphrasing key concepts in one's own words and limiting direct quotations is advisable. Including citations, especially to published works, avoids accusations of impropriety. But incidental copying alone is not an automatic ethics breach rising to the level of dishonesty and deceit.
The goals and conventions of legal advocacy mean plagiarism standards diverge somewhat from academia. However, attorneys must still balance efficiency against their duties of integrity and professionalism. Exercising reasonable discretion in the manner and degree of copying is essential.
2. Is legal writing fundamentally different from academic writing in terms of expectations around originality and attribution?
Yes, legal writing fundamentally differs from academic writing in terms of expectations of originality and attribution. The core purpose and audience for each type of writing are distinct, leading to different conventions.
Academic writing, such as scholarly articles and student papers, is designed to contribute original ideas, insights, and analysis to the collective body of knowledge on a topic. Proper attribution is essential to give credit to other scholars' work that the writer is building upon. Presenting others' ideas as one's own is considered plagiarism. Originality is highly prized.
In contrast, the goal of legal writing in litigation filings is to persuade the court to rule in favor of one's client. Judges are not looking for original ideas. Indeed, they are mainly interested in what other judges have said on an issue. Lawyers provide clear and compelling arguments for why the law supports the advocated outcome without distorting what appellate courts have said. Citing, quoting, and paraphrasing precedents balance useful explanation and argumentation against injecting confusion with unnecessary details.
Efficiency and effectiveness are key considerations. Clients prefer to avoid paying for attorneys to reinvent the wheel. Reusing arguments that have succeeded before, whether from the attorney's prior briefs or exemplar motions drafted by others, is an established practice. Even judges recycle language from briefs in their opinions.
Some unique features of legal writing include:
- There is no expectation that a brief represents solely the original work of the signing attorney rather than a collaborative effort.
- Frequent use of boilerplate language and accepted legal terms of art.
- Excerpting key statutory and rule provisions, often without quotation marks.
- Heavy reliance on legal precedent, which necessitates restating courts' prior reasoning.
- Use of standard forms and templates for routine filings.
So, while in academia, copying a sentence without putting it in quotes and citing the source would be plagiarism, in legal briefs, it may not raise an eyebrow, especially if the source is another brief rather than a treatise or article. That doesn't make extensive copying a best practice, as courts have criticized it as sloppy, misleading, or sanctionable. Be careful, and limit the use of unattributed quotes, and avoid wholesale copying.
However, the fundamental difference is that legal writing is more accepting of copying to achieve a functional purpose efficiently, whereas academic writing demands original analysis and scrupulous attribution to reflect individual contributions to scholarship honestly. The plagiarism standards reasonably differ between the two contexts.
3. Should copying without attribution from different sources be treated differently from an ethical perspective? Citing language from published articles and judicial opinions seems more problematic than recycling language from one's prior work or that of other attorneys.
The type of source material being copied without attribution is an essential factor in assessing whether the practice is unethical from a professional responsibility standpoint. There are stronger arguments that copying published works without citation is deceptive and unethical than recycling language from practitioners' prior briefing.
When an attorney copies text from a treatise, law review article, or other published secondary source without citing that source, there is a colorable argument that such conduct is dishonest and prejudicial to the original author. Legal scholars and analysts publish their works not just for direct compensation from the publisher but also to spread their ideas and gain recognition as thought leaders. Being cited in briefs and judicial opinions measures the influence and impact of their scholarship.
If their published analyses are copied into briefs without attribution, the original authors may be deprived of that recognition. The court and opposing counsel will be unaware of the provenance of those legal arguments and unable to acknowledge the scholar's contribution, even if they find it persuasive. Over time, uncited copying of published works could rob deserving authors of the reputational credit and influence they have earned while diminishing the brief's perceived originality and integrity.
Extensively quoting judicial opinions without citing them raises additional systemic concerns beyond harm to individual judges. Attorneys have a duty to bring relevant caselaw to the court's attention so it can assess the weight of authority and make fully informed decisions. Hiding the source of statements of law by omitting citations to prior opinions could allow inconsistent or aberrant rulings to propagate unchecked.
In contrast, copying portions of briefs previously filed by the attorney or others at their firm implicates less pressing ethical concerns. The client in the prior matter received the full benefit of that original work. Unlike treatise authors, brief writers are directly compensated by their clients at the time rather than relying on reputational credit.
However, judicial opinions and secondary sources generally present the strongest case for ethical impropriety in unattributed copying. The countervailing considerations of author recognition, systemic integrity, and intellectual property lessen with prior briefs, especially if from the same firm.
Ethically, best practices remain to use direct quotations sparingly, paraphrase concepts in one's own words where possible while citing sources, and avoid verbatim copying of more than a couple paragraphs, even from briefs, without attribution. A measured, sparing approach to copying strikes the best balance between efficiency and integrity. However, as a matter of degree, failing to cite published scholarship and caselaw is the most indefensible from an ethics perspective.
4. Even if not an automatic ethical violation, should attorney plagiarism be discouraged?
Absolutely. Even if it does not always rise to the level of an ethics violation under Rule 8.4(c) 's prohibition on dishonesty and deceit, attorney plagiarism should still be strongly discouraged as a best practice. Excessive verbatim copying of source material without attribution in briefs can violate several ethical duties attorneys owe to their clients, the courts, and the profession.
First and foremost, an attorney submitting a brief filled with conclusory statements of law or boilerplate analysis copied from other sources, without care to tailor the authorities and arguments to the specific facts and issues of the case, is likely not providing competent representation. The duty of competence under ABA Model Rule 1.1 and state equivalents requires the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." A cut-and-paste brief that fails to apply the law to the client's unique circumstances falls short of that standard.
Mindlessly block-quoting treatises or opinions without examining how the principles apply to the case also demonstrates a lack of reasonable diligence and competence in representing the client, violating Rule 1.3. Sloppy copying bespeaks an eleventh-hour rush job rather than the considered analysis and client-centered advocacy ethical rules demand.
Relatedly, a pasted-together, inapposite brief may become a frivolous filing if the attorney has yet to independently verify that the arguments are factually and legally supported for this case. Rule 3.1 bars asserting issues without a non-frivolous basis in law and fact. An attorney must refrain from delegating the core duty to assess the merits of a motion or opposition by uncritically copying others' writing.
Slipshod plagiarism also displays a troubling lack of candor to the tribunal under Rule 3.3. The court deserves better than a brief stitched together from mismatched pieces of other works without cohesive, case-specific crafting. Even if not subjectively intending to deceive, the attorney who lifts passages wholesale is impliedly misrepresenting the level of effort and skill put into the filing.
Finally, such conduct may violate the catch-all provision of Rule 8.4(d) prohibiting conduct prejudicial to the administration of justice. Plagiarism that produces a deficient, legally erroneous brief ill-suited to the case impairs the court's ability to make sound, efficient decisions. Even if not guilty of fraud, the lawyer has still disserved the client, the court, and the disciplinary system's goal of fostering competence.
So, while the degree of copying, intent to deceive, and nature of the source material all factor into whether plagiarism constitutes an ethical violation, it is inadvisable attorney conduct that warrants disapproval. Pasting a patchwork of prior authority without focused analysis is detrimental to clients and degrades trust in advocates and the legal system. Careful, contextual use of properly attributed sources is how to uphold the profession's ethical standards.
5. Is the use of AI-generated text plagiarism?
Using AI-generated text by attorneys raises some novel ethical considerations that overlap with the plagiarism analysis but also implicate distinct concerns. On one level, an attorney's use of AI drafting tools is just a more technologically advanced version of copying from prior sources. However, it also highlights the core duties of competence, candor, and independent professional judgment in new ways.
One threshold question is whether using AI-generated text without disclosure constitutes deception or misrepresentation under Rule 8.4(c). Is there an implied representation that a brief is the attorney's work such that passing off AI writing as one's own is dishonest? The answer may depend on how courts and clients perceive the technology.
If AI is viewed as a sophisticated tool for attorneys to efficiently generate routine language akin to a form book or automated template, then disclosure may not be expected. However, non-disclosure could be misleading if AI is seen more as an independent source of legal analysis, such that the attorney appears to represent the AI's reasoning as their original thoughts.
The counterargument is that clients and courts only expect the attorney to endorse the final work product rather than vouch for its precise drafting method. Under this view, if the attorney carefully reviews and takes responsibility for the AI-generated text, ensuring it is accurate, applicable, and well-argued, then using AI is not inherently deceptive, even without disclosure. The result should matter more than the process.
However, even if it does not amount to misrepresentation, over-reliance on AI could still compromise an attorney's duties of competence and diligence under Rules 1.1 and 1.3. An attorney cannot unthinkingly cut and paste AI output without manually verifying that it correctly applies the law to the unique facts and issues of the case. The attorney must remain actively engaged to ensure the AI output accurately reflects key arguments and authorities.
Rote copying AI-generated briefs without tailoring them to the case at hand could also yield frivolous or legally erroneous filings violating Rule 3.1. The attorney must still independently analyze whether the AI output is supported by a non-frivolous basis in law and fact for the specific matter. AI is not a panacea absolving the attorney of the duty to exercise professional judgment.
Overdependence on AI violates Rule 2.1's directive that attorneys render candid, independent advice to clients. If an AI brief is generated without meaningful attorney review, it may not reflect the attorney's professional judgment and best counsel. An attorney cannot delegate the core functions of legal analysis and client-centered advocacy to AI.
6. There are significant moral and philosophical differences between using the original work of a human author versus AI-generated text when it comes to plagiarism.
A core element of why plagiarism is unethical is that it fails to give credit and respect to the original human creator of the work. When we use someone else's writing or ideas without attribution, we steal the fruits of their mental labor and creative expression. There's a strong argument that humans have a fundamental right to recognition for their original intellectual contributions. To copy it and pass it off as one's own violates the autonomy and dignity of the human author.
Moreover, uncredited copying of human work can cause tangible harm by depriving the original author of the reputational benefit and influence they deserve. For example, a scholar whose analysis is used in legal briefs without citation loses out on the professional esteem, recognition, and career advancement that would flow from acknowledging their impact.
In contrast, the moral calculus is murkier with AI-generated text. Artificial intelligence does not have any claim to autonomy or originality. In one sense, generative AI is systematic plagiarism and paraphrasing. No sentient being is harmed or disrespected if its work is copied without credit.
There is still an obligation to disclose the use of AI, not out of respect for the AI itself, but for transparency to the audience. People may feel deceived if they falsely assume writing is the original work of the human presenting it when AI generates it. There could be a "right to know" if a brief or article was written by a machine, even if the machine itself does not have moral rights.
However, if we view AI as a tool that attorneys and authors use to generate writing more efficiently, then the need for disclosure is ambiguous. We do not expect a disclaimer every time a word processor with grammar and style assistance is used. With more advanced AI, the line between tool and autonomous originator blurs.
Arguably, as long as the human author carefully reviews, edits, and takes ultimate responsibility for the AI-generated text, they are making it their own original work in a meaningful sense. AI is a cognitive aid that helps produce writing, but humans must still apply significant judgment and editorial discretion.
That said, the human vs. AI distinction does matter for plagiarism on a gut level of ethics and social mores, even if it does not always rise to concrete harm. Copying the work of a feeling, thinking humans without crediting them feels viscerally wrong in a way that utilizing AI text does not. We intuit the human author's moral desert for recognition.
Best practices still require disclosure of the use of AI in generating text presented as one's own out of respect for the audience, if not the AI. But it occupies a different, more ambiguous moral terrain than copying a human's work. The offense to dignity and desert is more attenuated.
Ethically, using "AI servants" implicates fundamental questions of autonomy and moral status that we are only beginning to grapple with as a society. The ethics are far from settled. We can generally utilize AI-generated text with a clearer conscience than uncredited human-written material as long as we are transparent and take ultimate responsibility for the output. The key is to use AI as an aid but not abdicate human judgment and discretion.
Appropriately used as a drafting aid, AI can be an ethical, efficient tool for attorneys. But it cannot substitute for an attorney's professional responsibilities to provide competent, well-reasoned representation. Attorneys must remain hands-on to review, refine, and take responsibility for AI-assisted work product. Proactively informing clients that AI is being utilized may be advisable for transparency.
As with plagiarism, AI can be a valuable resource if used thoughtfully but an unethical crutch if relied on recklessly. The fundamental duties of diligence, competence, and independent judgment remain paramount. Attorneys should embrace technological aids as complements to, not replacements for, their professional obligations. Keeping AI use within these ethical boundaries is critical.
Conclusion
The issue of plagiarism in legal practice does not have a one-size-fits-all answer. Legal professionals must balance efficiency with integrity, use citations appropriately, and tailor arguments to the specific context of each case. While the standards for plagiarism in legal settings differ from those in academic ones, maintaining honesty and professionalism remains paramount.
No comments:
Post a Comment