A decision by a United States Bankrtupcy Judge in Des Moines discusses plagerism in legal briefs. The points made by Judge Paul Kilburg need to be considered and heeded.
The issue arises in connection with two briefs filed by West Des Moines attorney Peter Cannon in connection with an adversary proceeding. The briefs involved were "Defendants (sic) Brief in Support of Removal of Attorneys for the Trustee" which was filed before a hearing on the issue, and "Defendants (sic) Post Hearing Brief in Support of Removal of Attorneys for Trustee". After reading the briefs, Judge Kilburg felt that each contained an extraordinary amount of research. He asked attorney Cannon to certify who authored the two briefs. The opinion by Judge Kilburg states, "On December 22, 2006, Mr. Cannon certified that while he had prepared both briefs, he had "relied heavily" on an article written by others. The article upon which Mr. Cannon relied is Why Professionals Must Be Interested in "Disinterestedness" Under the Bankruptcy Code, May 2005, ("the Article") by William H. Schrag and Mark C. Haut, two attorneys of the New York office of Morgan, Lewis & Bockius LLP. The Court located this article on the internet at http://www.morganlewis.com /pubs/Disinterestedness_v2.pdf. Mr. Cannon fails to acknowledge or cite this article in either brief." The judge notes that the second brief contains more original material than the first, but he questions the use of string cites. "Mr. Cannon wrote much of the brief's text, but reproduced string citations from the Article for supporting authority. The citations he selected are presented in the same order in which they appear in the Article, with the same parenthetical explanations. Aside from these reproduced citations, Mr. Cannon did not add any case law in support of his position."
The Court finds that attorney Cannon committed plagiarism which is a violation of the Iowa Rules of Professional Conduct and that he further violated the rules by charging the client over $5,000.00 for preparing the two briefs.
The Court concludes that sanctions should be imposed. "In addition to exposing himself to significant sanctions, Mr. Cannon's acts of plagiarism burden the Court, undercut his client's cause, and generate criticism of the legal profession. Moreover, parroting a scholarly article in this way is not an effective type of advocacy. See Frith, 325 N.E. 2d at 189. More fundamentally, Mr. Cannon's disregard for the true authors' property rights in their ideas reveals a lack of integrity that reflects poorly on the legal profession. Lane, 642 N.W.2d at 300; Lamberis, 443 N.E.2d at 551. The egregiousness of Mr. Cannon's conduct requires an appropriate sanction. See Redding, 251 B.R. at 552-53."
Cannon is order to attend a law school course of ethics. He is to return the fee for work on the briefs to his client. His conduct is reported to the Chief Judge of the Southern District of Iowa, he is notify the authors of the articles he used of what he did and to provide the Court with a copy of his correspondence, and the Iowa Supreme Court Disciplinary Board is notified of his actions.
The decision by Judge Kilburg was entered on August 21, 2007. The Order is the subject of comments on Legal Blog Watch (Lawyer Sanction for Plagiarism in Brief) and at The Volokh Conspiracy (Attorney Sanctioned for Plagiarizing Article in His Brief).
The bottom line is that if you are going to use a work in any writing, cite to the authority. Also, be careful about relying on other author's works. Check them out to assure that they are accurate.
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