Every year, Virginia lawyers have to complete a certain number of class credits (CLEs) to remain certified as a lawyer. A certain number of those hours have to be in ethics. Yes, I know, insert applicable lawyer joke here. Regardless, I still attend ethics classes every year. So, I took a course in The Ethics of Legal Writing. I know-the jokes keep coming.
Most of what I write as a lawyer is derivative. I quote from cases, statutes and articles. The standards that govern my cases are often so ingrained that it’s tempting to repeat them without citation. Junior lawyers (associates) draft pleadings signed by senior lawyers. All these things are plagiarism if proper credit isn’t given to the initial author. One would think I wouldn’t need a class to tell me this. Anyway, the class, an opening written by someone who’d commented on one of my stories and using the same set-up I had (prompting a “dÃ©jÃ vu” comment from one of the critters), and a “Daily Kick” from Dave Farland (Davefarland.net) sent out on September 10, 2011 started me thinking about plagiarism.
A judge once used a paragraph I wrote in his final decision. His opinion didn’t reference that the section came from my brief. Is that plagiarism? Yes. It’s using another’s words without giving that person credit. But, while I’d see red over someone reproducing my fiction writing that way, I took the judge’s use of my paragraph as a huge compliment. I never even considered that the judge was guilty of plagiarism. On the contrary, I’ve pointed to that section of the published opinion with pride.
Senior lawyers have associates who write briefs (the legal documents we file with the Court). The senior lawyer then may file the completed brief without reference to the poor associate who slaved over the document. In the legal profession, as long as the partner reviewed and retained oversight over the work, his taking credit for the associate’s words is acceptable. Yet, in the non-legal writing world, this purest form of plagiarism-stealing someone’s words-destroys careers.
So, is it that lawyers don’t believe in plagiarism when it comes to legal writing? No, we just have different pressure points. The legal writing world is a bit schizophrenic about ghost writing. Ghost writing is when someone writes for a fee knowing that someone else will be listed as the author. In non-legal writing, ghosting is a time honored tradition. Writers are hired to make famous people’s good stories readable. The writer doesn’t get credit for the work, the famous person does. It’s an accepted form of plagiarism since the writer is fairly compensated for the use of his words. Even within the legal writing context, we accept certain types of ghost writing like the associate/senior lawyer example above.
But I can lose my law license if I ghost writing a pleading for an individual who then files the document on a pro se (i.e. without counsel) basis. A pro se party is likely to get more leeway from the Court than an attorney. So Cheatum hires Attorney Dewey to draft a law suit for him. Dewey then allows Cheatum to file it without Dewey’s role being disclosed. Because Cheatum is “pro se”, the Court will likely forgive some of “his” mistakes even if it would have raked Dewey over the coals for those errors. The Virginia Bar considers this form of ghost writing fraud on the Court and the opposing party.
Maybe there’s a reason lawyers need classes on plagiarism. We often don’t think of ourselves as “writers” even though a large portion of what we do, our craft, is written. Plagiarism is center stage in the information age. It’s not just college students trying to fill space in a paper who are plagiarizing these days. Dave Farland’s September 10, 2011 Daily Kick warns of writing scams offering to review or edit your manuscript in order to steal it. The availability of e-publishing allows “writers” to sell their books to readers before those books have been professionally vetted. Most of the time, that’s a good thing. But plagiarism can flourish in this unrestricted marketplace. Non-lawyer writers don’t sit through CLEs. All writers, legal and non-legal, need to be vigilant about the many forms of plagiarism given current technology. As David Farland suggests and the Bar Association requires, be careful with electronic documents. Don’t send them to people you don’t know.