Monday, March 03, 2008

A lawyer who plagiarizes violates disciplinary rules [?]

IPBiz just ran across an interesting post by patent attorney Brett J. Trout at Blawgit:

According to U.S. Bankruptcy Judge Paul J. Kilburg, West Des Moines Peter Cannon “violated the Iowa Rules of Professional Conduct by plagiarizing material for briefs and by unreasonably billing his client for preparation of those briefs.”

There's a lot of detail in the post. The basic problem was that 17 of 19 pages in Cannon's pre-hearing brief were copied from an article by William H. Schrag and Mark C. Haut, attorneys at the New York office of the law firm Morgan, Lewis & Bockius LLP.
There was NO attribution to these authors BUT there was billing to the client.

In his blog post, Mr. Trout illustrates the differences between plagiarism and copyright infringement in the

For instance, if you copied the Bible and presented it as your own, that would be plagiarism, since it involves claiming credit for something you did not do. This might get you kicked out of school, but would not constitute illegal copyright infringement. There was never any copyright in the Bible. Conversely, incorporating large, properly cited, excerpts from The Da Vinci Code in your own novel, would likely not constitute plagiarism, but would be copyright infringement. You are not claiming the work as your own, but the act could still constitute copyright infringement, since you are reproducing the copyrighted work without permission.

Mr. Trout, in quoting from the Kilburg opinion, reminds one of some issues in Glenn Poshard's Ph.D. thesis at SIU:

Mr. Cannon does not admit to plagiarism in respect to the post-hearing brief because he copied citations, and not text, from the Article. It is his position that the copying of string citations is not plagiarism. However, at least one court has found that reproducing material consisting primarily of citations is in fact plagiarism. See Frith v. State, 325 N.E.2d 186, 188 (Ind. 1975) (attorney who reproduced more than ten pages of an American Law Report in his brief committed plagiarism). Citations, particularly string citations with parenthetical explanations, can contain original expressions and ideas in the same way that text can. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 761 (1997) (Souter, J., concurring) (collecting case citations and commenting on what the “parentheticals here suggest”); Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1256 (11th Cir. 2001) (”The cumulative effect of these citations is persuasive. . . .”). The particular citations appropriated by Mr. Cannon list dozens of cases, and provide a quote or synopsis for each case that explains its relevance to the authors’ argument. By passing off these citations as his own, Mr. Cannon plagiarized Schrag and Haut’s ideas and expressions just as surely as if he had copied an equivalent amount of text.

Paul L. Caron also discussed the case (In re Burghoff, August 2007). One interesting aspect of the decision he flagged was:

Because Mr. Cannon does not appreciate the nature of plagiarism, a continuing education class will not cure his ethical shortcomings. Mr. Cannon's deficiency calls for the more-involved method of instruction offered in a law school course on professional responsibility. Mr. Cannon may complete the course at an accredited law school or arrange for private instruction from a professor of one of these institutions. Mr. Cannon's act of unreasonably billing his client for the plagiarized briefs justifies an additional sanction of disgorgement. ...

IPBiz notes that this insight can be applied to some of the remedies proposed at Ohio University and Southern Illinois University. If one does not fully appreciate the problems associated with plagiarism, "mild" educational approaches will NOT be effective in deterring the unappreciated bad behavior.

As a separate point, IPBiz wonders if the approach applied to Mr. Cannon of a disciplinary rules violation, might be applied to certain law professors who copy things without attribution.

See various posts on IPBiz, including:

Do law schools promote a culture of copying?

Plagiarism in the journal Proteomics

No plagiarism at Harvard, Princeton, Yale and no need for turnitin?


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