Lawyers Copying Lawyers

Peter Lattman at the WSJ Online had this posting a few days ago:"Plagiarism is right up there with patents and the price of oil as topics du jour. Witness the rise and fall of Harvard sophomore Kaavya Viswanathan, whose hot chick-lit book ended up being pulled from the shelves amid plagiarism accusations. Then there was the humiliation suffered by Raytheon CEO William Swanson after a blogger revealed that at least half of his popular “Swanson’s Unwritten Rules of Management” was filched from other tomes.This got the Law Blog thinking: What about law firms that copy other law firms’ litigation papers? After all, with the Internet making it a snap to appropriate other law firms’ court filings, doesn’t plagiarism run rampant in the legal profession. Lo and behold, the Missouri Law Review will soon publish this article by Davida Isaacs, a professor at the Salmon P. Chase College of Law, on the validity of copyright infringement claims based on the unauthorized use of litigation documents.Several years back the now-beleaguered Milberg Weiss Bershad Hynes & Lerach made headlines when it threatened to file copyright infringement lawsuits against other law firms that borrowed language from Milberg’s court filings. Citing another example of an attorney threatening another with a copyright infringement claim, Isaacs suggests “that infringement suits against fellow members of the Bar may be on the horizon.”Isaacs, who practiced at Kaye Scholer in NY and Venable in D.C. before joining academia, argues that while most litigation documents contain elements entitled to copyright protection, subsequent use of those documents qualifies as “fair use” under the copyright laws. Fair use exists, she says, because adopting another firms’ litigation documents does not diminish those documents’ market value. In addition, regular licensing arrangements of court filings would be untenable. She also concludes that copyright actions would deter attorneys from adapting litigation papers, which would increase the cost of quality legal representation and impair the legal system’s efficiency.In effect, Professor Isaacs writes, copy away:'Every day, lawyers sit at their desks, struggling to find the right words to use in a complaint or a memorandum of law, with the hopes that those words will persuade the court or the other side of the correctness of their client’s position. A substantial number of these lawyers turn to another attorney’s work for language – sometimes simply a particularly clear paragraph describing a complex legal issue, and sometimes a larger portion containing an especially cogent legal argument – and incorporate it into their own document. This process has almost certainly been repeated for decades, and most likely for centuries. While a superficial analysis might lead the “fair use” defense to be rejected because allegedly infringing litigation documents are used for the same purpose as the original works, in few places in society do the broad protections of copyright law make less sense than in the area of litigation.'"The availability of briefs on Westlaw, at the Supreme Court's and other courts' websites also makes the process of copying briefs much easier. The creme de la creme Supreme Court firm of Goldstein & Howe has many briefs on its website, helpfully broken down by categories, consistent with the firm's extremely laudatory efforts to foster a skilled Supeeme Court bar through clinics at law schools. There are times when lawyers love to have their work product copied verbatim, for example, by the judge they are in front of. I have heard many lawyers crow in reading an opinion that "this was lifted right out of our brief, word for word." I had a less pleasing experience many years ago in the Second Circuit when the late Irving Kaufman, in a fair use opinion in a case I was not involved in, copied verbatim passages from my fair use treatise without attribution, down to the way I had capitalized things. Scholars too love to be copied, but with attribution.Verbtaim copying by judges happens most often in the factual recitation of an opinion, but it can and does happen in the analysis section. With findings of fact and conclusions of law, judges frequently merely endorse one side's work product. But what about laywers copying from lawyers in unrelated cases? In addition to Professor Isaacs' forthcoming article, Judge Stanley Birch of the Eleventh Ciircuit took a look at the issue in "Copyright Protection for Attorney Work Product: Practical and Ethical problems," 10 J. Intell. Prop. L. 255 (2003), suggesting to a firend whose work was copied, "sue the bastards for copyright infringement." Lisa Wang in a law review note looked at protectibility, "The Copyrightability of Legal Complaints," 45 B.C.L. Rev. 705 (2004).I have no doubt that a brief as a whole is copyrightable, but there are a number of different scenarios where copying may or may not be excused and which therefore raise different issues. Most lawyers I think would be upset if a great brief was copied in whole with a different firms' name slapped on. Lifting research is common and unobjectionable, as is the copying of winning little passages. Lifting whole parts to demonstrate that the lawyer has taken a different position in a past case is a common tactic (whether it is relevant if done for a different client is a different question). In the end, for the most egregious examples, courts and bar associations are probably the better venue for complaints than a copyright suit.