Lawyers Busted for Plagiarism

Don’t be the one coming up with excuses about copied material

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To the list of professional sins a lawyer might possibly commit is the ever-so-embarrassing one of plagiarism, in short, presenting someone else’s work as one’s own. Charges of plagiarism carry a taint that can last for years, and, for some lawyers, may involve professional discipline, firing, and sanctions in addition to negative publicity and business goodwill tarnished by a self-instigated deed.

Yet plagiarism can arise in any profession, among professionals in any phase of their careers. In addition to luminaries, J.D. or not, accused of plagiarism, like Vice President Joe Biden, President Barack Obama, acclaimed author Doris Kearns Goodwin, and now Republican National Convention speech giver Melania Trump, there are also lesser known folks, some of whom are lawyers, who should know better.

Knowing Plagiarism When You See It

Of course, whether any individual, lawyer or not, indulged in a little professional lifting of someone else’s work depends, of course, on what one’s definition of plagiarism is. Interestingly, Black’s Law Dictionary contains two definitions, one that incorporates an intent (“deliberate and knowing”) and one that does not (material copied without attribution). Plagiarism, Black’s Law Dictionary (10th ed. 2014). As convenient as the cut-and-paste function allowing us to copy large chunks of text from one source and paste it into another document is in this digital age, that ease can also make copying a temptation.

Even so, we can all probably flat-out agree that the wholesale reproduction of a vast amount of material, crafted by another and presented as one’s own, is, indeed, plagiarism. But others seem to be arguing that a de minimis bit of haphazard cutting-and-pasting is more an error than an actual wrong.

Some maintain that intention is necessary and argue that an accidental misappropriation could not possibly constitute plagiarism. How often does someone accused of plagiarism respond that it was an unfortunate accident, the result of sloppy research habits gone unchecked?

Yet, is that sufficient excuse? Should an inquiry into plagiarism entail a word count and a percentage of theft, of the ‘Well, out of a 5,000-word speech, only 157 words in a cluster were identical to another’s work’ ilk? If so, what is the threshold? How many words in a row, or how many clusters of phrases, or how many entire paragraphs identical to someone else’s writing are acceptable should the new user’s work be lengthy?

Much Ado about Paraphrasing

To some, the answer would be ‘none.’ And yet, as with everything else in the law, the issue of plagiarism can be a bit nuanced, just as it can be within any other profession. Often the problem seems to be not so much the wholesale lifting of another’s entire work but the subtle matter of paraphrasing that is poorly executed and improperly sourced. Paraphrasing well, which is, to say, not by merely changing a few words in a given paragraph and calling it done, but by truly explaining someone else’s notion in your own words, by adding your own gloss, and by including attribution to the original source, is not a skill that everyone has developed.

In my own experience, some people have been a bit too cavalier with paraphrasing and are inclined to think they can just change a few key words in a paragraph, maybe alter the order of a list, and call it a day.

In addition to poorly executed paraphrasing, there are other ways a legal writer can be tripped up. In the world of law, attorneys are likely to be looking closely at statutory or regulatory requirements when making an argument, and phrases from the controlling authority are likely to creep in. If you’re talking about the “imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance” within the meaning of 42 U.S.C. § 9606 (the Superfund law) that allows the president to take certain actions, you’ll likely be parroting certain phrases repeatedly: whether an endangerment was imminent and substantial, whether the public health or welfare or the environment was endangered, whether a hazardous substance was involved, whether there was an actual or threatened release of that hazardous substance, and so on.

And so it goes with the application of the law to the facts of any given scenario involving statutory or regulatory requirements. There tend to be a limited number of ways someone can discuss legal verbiage without subtly altering the meaning of those words. Once we’ve quoted our source of law, how many times do we have to keep on citing as we parse the language of it and apply it to our own fact pattern? It can sometimes be difficult to tell. Add to this the fact that lawyers and judges very much rely on that thing called legal precedent, which means they constantly refer to prior decisions and then may massage or coax the language in those prior decisions to more specifically address their present problem. In an action with multiple plaintiffs or multiple defendants, their arguments, and filings, may of necessity be quite similar. That there may be similarities in the language in court filings and judicial decisions as any given legal problem is addressed repeatedly, with layer upon layer of interpretation of quite similar content, should come as no surprise.

So, too, lawyers rely on form books for boilerplate language, such as that found in contracts for the sale of real property. They are also likely to develop a firm-based library of standard terms, clauses, and documents that they will use for other clients with similar problems. Suddenly, situations where one is using the work of another without attribution don’t seem so much like plagiarism but like standard practice in many a professional setting, legal or not.

Moreover, a writer ultimately wants her work to be readable. We all know the tendency of the universe to skim, especially once long strings of citations are inserted into any given work. Readers can get distracted by voluminous references, especially if they happen to be in-text attributions. This is a very real concern, not that it would rationalize plagiarism in any way. How to work around that problem? Footnote or endnote if you can, rather than using an in-text citation.

Without a doubt, though, it’s when you launch into the arena of copying someone else’s filings wholesale that you are most definitely crossing a line into the land of plagiarism. But the result of such a transgression, as inadvisable as it is to commit one, may vary. Getting caught, of course, is likely to result in some sort of negative consequence. Having plagiarized and billed a client for time spent ‘developing’ the plagiarized document may bring on an extra measure of reprimand. Signing and filing a document in court that contains plagiarized material, even if inserted by your associate, may make you suffer the consequences. But if you plagiarized less, or took other actions that mitigated your transgression, the fallout may not be as predictable.

How Should Lawyers Avoid Plagiarism?

Take care in note-taking. Like many others, I too cut and paste materials from various sources, typically in documents I have identified as notes. I take care to highlight material that is taken verbatim from a source and include the pagination within the material and list the source. When I am drafting a final document, I double-check to make sure that my quoted material is identified and cited appropriately. Is this system infallible? Of course not. Human error can always creep in.

Given that mistake is a possibility for anyone, it helps to have a second check conducted by someone capable who will scrutinize your quotations, paraphrases, and citations. If you happen to be presenting your work to an audience of 10 million people, you may want to have some high-level personages in your work life review your piece. Even with far lower stakes and audiences that are much smaller, it’s a good idea to have someone review and check your work. This should be someone who feels comfortable challenging you. This should also be someone with whom you agree about what plagiarism is. If you ask an assistant who feels it’s perfectly fine to cut and paste some material from the Internet and just change a few words and call it done to review your work, that assistant’s assessment is not going to improve the quality of your product. You might have an assistant pull a copy of every document referenced in a work and highlight the paraphrased and quoted work.

To double-check yourself, you can also use online plagiarism checkers like Turnitin or Grammarly. There is also good old Google: cut and paste a few sentences of your work and run them through a Google search to see how similar your work is to material that is already online. Then do it again and again and again.

No one wants their career to be derailed by a plagiarism charge. No one wants to be accused of plagiarism, and even some people who are rightfully accused might not have fully understood what plagiarism is or how it could have been avoided. If you find yourself quibbling over whether you meant to or not, over whether you merely paraphrased or flat-out copied someone else’s work, it’s time to rethink your approach to plagiarism. In my own professional life, both in publishing and in higher education, I have been surprised by how many people, in my view, misunderstand paraphrasing and the requirement that paraphrased material still be cited. I’ve also been surprised by how dismissive people can sometimes be when confronted with evidence of their own plagiarism. There are steps that can be taken, though, and checks that can be built into any written project, to minimize the likelihood that plagiarism, even the unintentional sort, will find its way into a lawyer’s work product.