I recently had the displeasure of having to talk to a partner of a well-known firm about a publication they produced, posted as part of their online collections, and used as part of client development. The problem? The partner had signed off on a document that substantially copied and borrowed from one of our publications without any attribution. As I learned, and had already assumed, the publication was put together by several associates in the firm (presumably looking to make a name for themselves) and the partner was not directly involved in drafting it. It was still his problem though, and his name.
As I spoke to others about this, the question was raised as to whether the firm involved had a plagiarism policy. I didn’t know the answer to the question, and wasn’t about to call back to inquire about the severe punishment that surely would be meted out to the associates. So I polled some of my colleagues, and none of them had such policies in their firm or business. After all, everybody knows you don’t plagiarize.
Turns out the problem is that everyone is thinking about plagiarizing in very specific contexts, for example, a law review article or book. After all, you’re attempting to gain some advantage by submitting those types of documents, like prestige or money. But everything else is a gray area, even though it is really easy to attribute. Here, let me show you:
This is another person’s original thought, and is either a verbatim copy or a tight paraphrase of it. Person, My Original Thought at p. 1 (Winter 2010).
Spectacularly simple right? Hmmm, perhaps on second thought, no.
Let me begin by saying that my interest in plagiarism is two-fold. First, I am a producer and publisher of legal content that analyzes and discusses many aspects of the law, thus, plagiarism is a slippery slope to copyright infringement. A definite no-no in my business. Second, I recognize many of the problems inherent in defining what it means to plagiarize, and so it isn’t as easy as adding attribution in all cases. For example, if a lawyer copies our standard of review analysis for summary judgment practice and pastes it into a brief without attribution, that is technically plagiarism because the lawyer is holding that analysis out as her own, which it isn’t. But if I think the way I’ve written the analysis is clearer, more succinct, or whatever, then there is a greater possibility that the language will find its way into a judicial opinion. This, in my estimation, benefits the practice and perhaps I have a greater obligation to clarifying the law than calling lawyers out for plagiarizing my text. These are problems that are covered, to some extent, by cases like Venesevich v. Leonard, No. 1:07-CV-2118 (M.D. Pa. 2008) (memo op.; 12-19-08) (footnote 2, discussing cases and calling attorney out for plagiarizing his brief), and not the subject of this post, primarily because they have been well covered elsewhere.
No, I’m more concerned with the problem of plagiarism in the context of my opening: professional development practice (PDP), which includes writing for CLEs, speeches, firm publications, newspaper articles, blog posts, etc. And it’s something that isn’t really being discussed in recent literature, but with our cut-and-paste culture I fear it is being either intentionally or indirectly fostered.
I was interested in a recent discussion of “ghost blogging” that took place on the Tubes and over Twitter. It seems that several lawyer-bloggers have decided to take issue with the practice of outsourcing blog material for legal blog posts. The commentary (against the practice) is very marketing-centered, and seems to have reached a consensus that the practice is at the very least unethical, if not an outright fraud on the community (of lawyers and potential clients). I’m not entering that debate, but the commentary serves as a good segue to the larger problem of PDP plagiarism, whether it appears digitally or in print.
In talking about ghost-blogging, Mark Bennett believes that
[h]olding someone else’s resume, face, or results out as your own in marketing your practice is fraudulent. No ethical lawyer could possibly think that any of that would be okay. So how is it okay for a lawyer to hire a ghostwriter to write his blog? When a client hires a lawyer, more than the results or the face or the résumé, he’s paying for the lawyer’s knowledge, intellect and heart—attributes that good writing reveals and ghostwriting falsifies.
Bennett, Rent-A-Brain With Ghostbloggers (Jan. 28, 2010). Scott Greenfield has a more succinct observation that I liked:
To claim ownership of something that’s not yours is to lie.
Greenfield, Cogito Ergo Blawg (Jan. 30, 2010). Although they don’t mention plagiarism, it’s there, under the covers.
In Bast & Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57 Catholic Univ. L. Rev. 777 (2008), the authors survey recent history on plagiarism and authors of legal documents, from judges, lawyers, professors, and law students. It’s an excellent article, and I suggest you read it because it captures most of the problems with plagiarism in each discipline and offers suggestions for combating it. Another good paper is Matthew Mirow’s Plagiarism: A Workshop for Law Students, which also provides practical solutions for recognizing and avoiding problems associated with plagiarism. Unfortunately, neither paper discusses PDP writing. But Bast and Samuels do identify the common thread:
Legal scholarship should be based on intellectual honesty. With writing, intellectual dishonesty is avoided by the courtesy of citing to authority, accurately identifying authorship, and acknowledging those who contributed to the final product. Conversely, a writer who does not cite to the original author risks being unprofessional, giving offense, and being labeled a plagiarist.
Bast & Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing, at p. 777-78. In other words, the bedrock of intellectual honesty is to acknowledge the shoulders you’re standing on and the others who helped you climb on top to see.
So what should you do? Easy, read the articles I’ve linked to in this post, Google “plagiarism policies,” and build one to suit your firm’s practice with a particular emphasis on PDP, with proper attribution, of course. It won’t solve the problem, but it is a start to a dialogue with your attorneys and staff on best practices. Avoiding charges of plagiarism should not be difficult if attorneys and firms take plagiarism policies seriously and make attribution and verification a part of their PDP.
But, then again, maybe I’m in a growing (diminishing?) minority of attorneys who don’t see this as a problem or care about the intellectual contributions of others or feel like the odds of being caught are slight in comparison to the benefits to be gained or are just fucking lazy. Or worse, they feel entitled to take the information without attribution. It’s this last group that bothers me the most. And if you are hiring Millennials, you should be too because, like the firm I mentioned earlier, you might find yourself on the other end of a lawsuit.
[Image (cc) by Mario Sepulveda]
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