McHenry Co. (ECWd) –
When a newspaper prints a title of “Legal Brief Thief?”, on the front page with a picture of an attorney and his client, the implication is that someone stole a legal brief.
Although never disclosed in the article, there was no theft of any legal brief in any fashion, so the answer to the misleading title question is a definitive “NO”.
It always amazes me how some people get so far out in front of their skis on an issue before actually doing any real homework on the subject. Emotions have once again gotten the best of many as it relates to the recent accusations of plagiarism by unknown people, printed by the Northwest Herald.
We spend a lot of times reviewing case law on matters across the board, and one thing we have found, more often than not people think they know something about something with little to no real research on the matter. This appears to be the case for many of those quoted in this hit piece on a local attorney and we will explain why in this article, and will provide not our opinion, but the opinion of both lawyers and high courts as it relates to plagiarism and legal briefs. We are confident that for those willing to actually read the information with an open mind they will realize this alleged plagiarism is not quite what some have made it out to be.
From the top:
The online title of the same article referenced above: “Attorney for Algonquin Township highway commissioner accused of plagiarizing legal filing.”
Really? By who?
Before we get off into the weeds on the meat and potatoes of this article, does anyone else find it odd that the article makes no mention of who is making such an allegation? Never mind the fact that the title itself is false. The article talks about a portion of a legal brief being plagiarized. That being the case, how does an alleged plagiarism of a portion of a legal filing become plagiarizing the whole legal filing? Wouldn’t a proper title be “portions” of legal filing plagiarized, assuming that is the real situation?
“In my 20 years of practice, I’ve never seen anything like that,” township attorney James Kelly said.”
It is not surprising James Kelly has never seen anything like that. This is the same guy that allowed all kinds of laws to be violated by past administration, but I digress. The fact Kelly has not seen anything like this does not mean anything is actualy as presented in the article. We call it fluff or space filler. We will explain further in this evaluation.
“Hanlon denied copying material from any publications.”
I find that interesting considering Mr. Hanlon claims otherwise. According to Hanlon, his response was, “I’m not dignifying that”, “Go Pound Sand.”
“There are multiple citations that should have been made, and he passed that off as his own,” Chapman said. “That is the definition of plagiarism.”
I would suggest that Mr. Chapman do a little research to better understand the definition of plagiarism and how such an accusation may or may not apply to a legal brief. We will explain further in this evaluation.
“It’s bizarre,” said Bishop, who questioned Hanlon’s legal writing ability. “You would never take chunks out of a colleague’s opinions or briefs and claim it as your own. Most lawyers would not quote newspaper articles as an authority. You would check it out on your own.”
Interesting perspective, however, it would appear he is not aware of considerable legal writings on this point. We will explain further in this evaluation.
“As a trade journal, we present ourselves as a useful tool [for attorneys],” he said. “As editor, I would not advise pasting copy into a legal argument uncited.”
We will explain further in this evaluation the perspective of lawyers and courts who do have a law degree.
“A lawyer proved to have plagiarized could face a formal ARDC reprimand. At worst, a lawyer can lose his or her law license.”
Note the word “proved”. This is another “the sky is falling” scenario presented to support the narrative that the end of the world is coming to the Township because of this attorney.
“My son, who’s sitting next to me, just finished his final report for school,” Bishop said, “and he knows better.”
So glad this was put in the article as it is directly on point of what lawyers will explain further in this evaluation.
“It’s a big deal because he’s plagiarizing other people,” Victor said. “It shows me that he has no morals and no ethics whatsoever.”
No morals and no ethics whatsoever? Seriously? All from a woman who failed to disclose other government employment as required by law on her Statement of Economic Interest filing? Regardless, we will now explain why we believe the reporting of this information had nothing to do with possible violations of rules or misconduct, but more about beating the drum of legal drama in the Township to support a narrative against certain people.
I think a good starting point is for all those up in arms over alleged plagiarism, is to first read some information on plagiarism and how it may or may not apply to legal briefs as written by actual lawyers.
Attorneys At Work: A Flexible Notion of Plagiarism. We have highlighted some key points in the document of which a few are quoted below. -By James D. Peterson and Jennifer L. Gregor, Godfrey & Kahn SC:
- Copying of legal instruments and agreements does not constitute plagiarism because the attorneys who prepare the document are not generally claiming “authorship” in the standard sense. The signers of such instruments do so to indicate that they endorse, stand behind or agree to the content of the document. There can be no plagiarism without an express or implicit claim of authorship.
- The goal of this article is to clarify the basic principles of copyright infringement and plagiarism as they apply to the work of lawyers. Lawyers are first taught legal writing in the context of academia, which takes a very strict view of copying and plagiarism. The purpose of legal writing for practicing lawyers, however, is not to demonstrate individual skills; it is to communicate on behalf of clients and advance their goals. We advocate here a flexible notion of plagiarism adapted to the needs of the institutions in which lawyers work, where efficiency and clarity, not personal expression, are the primary values.
- Copyright infringement is illegal, defined by and prohibited under the Copyright Act. Most often copyright infringement is asserted as a civil tort, but when committed for purposes of financial gain, it is a crime. On the other hand, plagiarism itself is not illegal because attribution is nearly irrelevant under U.S. copyright law.
- one scholar suggests that lawyers’ copyrights are routinely infringed by judges in writing opinions. Many lawyers would be pleased to overlook such an infringement because it suggests the court’s agreement with the lawyer’s position.
- The second principle is that the unattributed use of the words or thoughts of other people often is acceptable if the copyist does not claim authorship in doing so.
- Indeed, one state supreme court expressly approved the practice, at least in the context of “legal instruments. “Legal instruments are widely plagiarized, of course. We see no impropriety of one lawyer’s adopting another’s work, thus becoming the ‘drafter’ in the sense that he accepts responsibility for it.”
- In the context of legal instruments and agreements, rules against plagiarism are nearly universally disregarded, and the words and ideas of others are used with impunity.
- We see no problem in drawing from these successful models structure, rhetorical devices, apt analogies and perhaps even well-turned phrases. Under the strict plagiarism regime of the academic world this would be plagiarism. In the world of fiction writing, it would be copyright infringement. But in the world of the lawyer, this is just careful preparation and effective advocacy.
- What matters in most legal work is whether lawyers stand by the content of the documents they produce. The rules of plagiarism applicable to the legal profession should reflect this reality. Using the words and ideas of others, even without attribution, should not violate the rules of professional conduct so long as it not deceptive and serves the needs of clients.
Additional legal input on the situation is found in the US District Court in New York case where they applied an interesting 4 prong test regarding copyright issues in a case against West Publications and LexisNexis.
- “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes;
- (2) the nature of the copyrighted work;
- (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- (4) the effect of the use upon the potential market for or value of the copyrighted work.”
- Hanlon’s Brief was done at no charge, thus no commercial purpose or gain.
- The nature of the work was a legal representation
- Only a small portion of the work was used without citation, which he acknowledges.
- Considering he did not prevail with that brief and there was no potential market for or value of the work.
We believe the 4 prong test applied in the US District New York case speaks for itself as it relates to copyright concerns.
As one person referenced, their son knew better for his final report, but what he did not know is the rules are applied differently based on the setting. The legal input provided points to a much different standard and application of rules when it comes to plagiarism in the legal setting vs. that of academia.
Trustee Chapman’s quote comes across as an authority on the subject but by all indications, the lawyers and courts appear to have a much better grasp on the reality and application of alleged plagiarism.
For all the reasons outlined above, we believe it would do a lot of people good to grab a cup of coffee and do some research before they open their mouth on matters they clearly know little about.