Algonquin Township

Algonquin Township – A little research tells an interesting story

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.[18] 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.”
  1. Hanlon’s Brief was done at no charge, thus no commercial purpose or gain.
  2. The nature of the work was a legal representation
  3. Only a small portion of the work was used without citation, which he acknowledges.
  4. 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.

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17 replies »

  1. This article is a defense for crappy legal work. But ok, let’s play along and assume the premise that lawyers have some latitude when it comes to plagiarism is true. (That’s a stretch, by the way, and one that should offend the sensibilities of any lawyer who takes pride in her work).

    A simple understanding of how judges make decisions would reveal that courts are bound by statute and legal precedent. Other lesser sources of authority such as law review articles, trade journals, etc can carry some weight but are clearly lower down in the order of authority. A lawyer who fails to cite the authority upon which they are basing an argument does so at her own peril and runs the risk of the court disregarding the argument altogether. First year law students are taught these basic principles from day one. A lawyer who chooses not to cite their source (or is too lazy to) is not acting in the best interests of his client.

    That Hanlon’s brief was rejected by the judge in the case is not surprising in light of his failure to cite authority. Perhaps he needs some CLE.

    • No, it is not a defense for crappy legal work. It is an educational tool explaining how such issues are looked at in the legal community.

      • You’re way out in front of your skis on this one. Actually, these issues are not looked at that in this way in the legal community. The ONLY accepted standard is to cite your sources. Failure to cite sources is at best sloppy and at worst puts your client at risk. Setting aside the plagiarism issue, I would question the skills of any lawyer who can’t follow such a basic practice .

          • It’s actually a simple concept to understand, Kirk. I’m sorry that you’re struggling with it. The sources you cite are irrelevant to my point. For the sake of this debate I’ve conceded your (incorrect) assertion that plagiarism isn’t an issue lawyers need concern themselves with. Further, the New York case you cite is clearly distinguishable from the facts at issue here because that case had to do with alleged copyright violations by a commercial entity, not citation omissions by a lawyer in a legal brief. The point is that NO ONE IN THE LEGAL COMMUNITY VIEWS IT AS AN ACCEPTABLE STANDARD TO OMIT CITATIONS TO RELIED UPON LEGAL AUTHORITY IN A LEGAL BRIEF. There are worse offenses a lawyer can commit for sure, but let’s be clear that the ARDC can (and has) sanctioned lawyers for the types of omissions committed in this case.

  2. we continue to learn that those who get our money to do a job for us, are flukies, lackies, whose career, when they are ineffective, always defaults to a gub position with power-and then we observe the state of the state. The ruled are defecting, sick and tired of these default people ruining our lives in this defunct state.

  3. In your cited article from Godfrey & Kahn SC titled “Attorneys At Work: A Flexible Notion of Plagiarism”

    You emphasized this line:

    “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.”

    So copying legal instruments and agreements is not plagiarism… well what is a legal instrument? Also what is a legal agreement?

    legal instrument:

    https://definitions.uslegal.com/l/legal-instrument/

    “A legal instrument is a formally executed written document. A legal instrument states some contractual relationship or grants some right. It formally expresses a legally enforceable act, process, or contractual duty, obligation, or right. Additionally, a legal instrument evidences the act and the process of preparing a legal instrument or an agreement. For example, bonds and mortgages. A legal instrument secures a legal right.”

    Well that does not sound like it covers an article in a trade paper to me, and that is what was copied word for word….

    http://www.nwherald.com/lists/2018/06/12/e8fd73af2ec84abb9cbd9fa2a5716365/index.xml?page=1

    legal agreement:

    https://thelawdictionary.org/agreement/

    “A concord of understanding and intention, between two or more parties, with respect to the effect upon their relative rights and duties, of certain past or future facts or performances. The act of two or more persons, who unite in expressing a mutual and common purpose, with the view of altering their rights and obligations. A coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing.”

    Well that still does not sound like it covers an article in a trade paper to me….

    Sounds like you should take your own advice and do some research.

    • What part of “will provide not our opinion, but the opinion of both lawyers and high courts as it relates to plagiarism and legal briefs.” did you not understand? We provided information for others to read that was on point with the situation at hand.

      • The part where an opinion you cited has no relevance to the case at hand is the part I don’t understand, you highlighted text relating to legal instruments and agreements as if it has significance in this situation when in fact it has zero relevance to the plagiarism of an an article in a trade paper.

      • Your argument would hold water, Kirk, but for the important fact that neither of the sources you rely on in support of your argument have anything to do with plagiarism in a legal brief. Do some more homework on the distinction between a legal instrument and a legal brief. Don’t you just hate it when facts get in the way of a good argument? Please take your own advice and have a cup of coffee and do some more research before spouting off about things you don’t understand.

        • There is no argument. We presented information from lawyers and courts on the subjects of plagiarism and copyright. You can cherry pick a legal instrument argument that the NHW presented on Gasser but we did not focus on that. We presented what courts and lawyers have said, nothing more. It would appear what they discussed in their opinions just doesn’t settle well with some. What I do understand, and maybe you missed this, it is not the “sky is falling” god-awful event some have tried to make it out to be. The brief it was in was a losing brief. It was provided at no cost. Did it impact the client? Only a hearing on that issue will determine that unless the judge has cited to that already. We have not seen the ruling. The other point that was being made was how plagiarism and copyright are applied differently depending on the setting.

          • The information you presented, Kirk, doesn’t stand up to reasoned, intelligent analysis and has nothing to do with the facts as they are in this case. I guess that’s no surprise though, as reason and intelligence seem to be in short supply when it comes to the parties on both sides of the Algonquin Township mess.

            If you were to ask the authors of the Godfrey & Kahn article if their article supports your interpretation I’d bet my life they would say it does not. It’s a simple concept. Copying text from a legal instrument is not plagiarism. Copying text for a legal brief without citation is. Your attempt to justify Hanlon’s plagiarism is absurd. But then again, as you say, the brief was written free of charge, so I guess you get what you pay for!

    • Michael is on point. The Godfrey & Kahn article refers to plagiarism in regards to legal instruments and agreements (i.e. wills, contracts and the like). Lawyers and non-lawyers copy boiler plate language in these types of legal instruments every day. No need to reinvent the wheel every time you draft a contract. In that sense the Godfrey & Kahn article is entirely correct. When drafting a legal agreement or instrument, a lawyer is not advancing his or her own views and opinions, but instead is creating and defining rights and obligations between parties to the contract.

      Therein lies the difference. A legal brief IS NOT a legal instrument by definition. In a legal brief, a lawyer is absolutely advancing his views or the views of his client. Copying text from any publication without citation and thereby presenting the ideas presented in that copied text as your own is 100% plagiarism in every sense of the word and IS viewed as such in the legal community.

      With all due respect, I suggest you stick to what you know, Kirk.

      • We provided the entire document that included more than just legal instruments and agreements. Did you download the entire document or just read some of the paragraphs we published?

        • Yes, I read the entire Godfrey & Kahn article. Nothing in it supports your analysis or disputes the distinction between copying text in a legal instrument vs copying ideas without citation in a pleading or legal brief. I found the quote in the article from the 6th Circuit Court particularly informative:

          “While our legal system stands upon the building blocks of precedent, necessitating some amount of quotation or paraphrasing, citation to authority is ABSOLUTELY REQUIRED when lanaguage is borrowed.” (emphasis added)

          Have a good rest of your week.

          • What legal analysis did I present on plagiarism? I outlined why I believe there was no copyright violation but offered no analysis on plagiarism. The information was to educate, not support or dispute what may or may not have been done. I think your reading way to much into what was presented and missing many points that were presented. If you did read the entire document provided, to inform people of what lawyers are saying about it, why does their three point discussion on brief writing not apply to the informative purpsoe of our article?

            “But even in brief writing, the strict plagiarism rules of the academic world are misplaced, for several reasons. First, the attorney’s signature on a brief suggests authorship, but not necessarily on the same terms as in other forms of writing. For example, a brief will typically incorporate significant but unacknowledged material written by the colleagues of the attorney who signs the brief. By rule, the signature on a brief represents the attorney’s endorsement of the brief, but not a traditional notion of authorship.[27]”

            “Second, good brief writers draw from the ideas of others, and not all such sources need to be, or can be, acknowledged. Obviously, in a sense, all brief writing draws from the ideas of others in the form of precedent, much of which will be acknowledged. But we see no problem in reviewing successful briefs by other attorneys on related subjects or successful briefs to a particular judge. 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.”

            “Third, and perhaps most important, the court’s purpose in reviewing a brief is not primarily to evaluate the personal creativity and skill of the lawyer, but to learn the law, apply it to the facts and decide the controversy. Most unacknowledged copying does not degrade the integrity of the court,given its purpose.”

            I am not providing any analysis on the situation, only pointing to the fact, as outlined in the above paragraphs, lawyers appear to have a different view than some of those being plastered in the paper and on social media.

            Personally, as it relates to my FOIA lawsuit, I hope Hanlon is a bad lawyer as we are suing the Road District and the Township under FOIA.

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