The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/132126
EFFECTIVE LEGAL WRITING ? WHEN IS COPYING OK IN LEGAL WRITING? By Diane B. Kraft University of Kentucky College of Law We all know that plagiarism is bad. We also know that the point of legal writing is not originality – in fact, it's the opposite. As Judge practice, and when is that attorney plagiarizing? Sometimes the line is clear, but often it is not. Richard Posner has noted, "originality is not First, the easy calls: highly prized in law." A transactional attorney It is almost certainly OK, and sometimes even preferable, to copy or sign work that is not entirely your own when: 1 would be crazy to create completely new and original language for every contract he drafts. A litigator who relies on her original ideas rather than on precedent in making her client's case will lose. What we don't always know is where to draw the line between acceptable and unacceptable copying of the work produced by others in the practice of law. In other words, when is an attorney who copies another's work following accepted • You're using language from a form book.2 • You're using boilerplate language from a contract.3 • You're using language from pleadings written by attorneys within your firm or organization. • You're looking at pleadings written by attorneys both within and outside of your firm or organization to see how other attorneys have handled similar issues.4 • You're signing pleadings written by other lawyers at your firm or organization.5 • Your clerks write your judicial opinions.6 It is almost certainly NOT OK to copy or take credit for work that is not your own when: You're copying large amounts of material from a treatise or article without quotation marks and proper attribution. For example, in 2010 an Iowa bankruptcy court sanctioned an attorney who had copied large sections of an article from a law firm website, verbatim and without attribution, into a brief he filed with the court.7 In 2011, a federal district court in Kentucky deemed "cutting and pasting" from Wikipedia, without attribution, to be plagiarism in violation of Rule 8.4 of the Kentucky Rules of Professional Conduct. 8 Apart from these relatively clear examples, the question of when copying is OK gets murkier. It is unclear if copying or taking credit for work that is not your own is OK when: 30 • You're using language from pleadings written by attorneys from other firms or organizations, or from judicial opinions. Some authors and attorneys believe that copying from briefs written by attorneys unaffiliated with one's law firm or organization is ethically questionable.9 Indeed, courts in numerous jurisdictions have sanctioned attorneys for copying large sections of other attorneys' briefs.10 On the other hand, the North Carolina State Bar has given attorneys the green light to copy parts of pleadings.11 One author has suggested that "it is likely appropriate to borrow 'structure, rhetorical devices, apt analogies, and perhaps even well-turned phrases' in preparing a brief. It may even be appropriate in many cases to copy verbatim 'routine matters involving established law, such as the standard of review or well-estabB&B; • 05.13