This post at The Volokh Conspiracy post and this one at Tax Prof Blog both provide extended excerpts from an Iowa bankruptcy case in which the court sanctioned an attorney — quite stiffly — for submitting a brief that was almost entirely (15 of 17 pages) lifted word for word from an article written by two other attorneys, without attribution. The attorney charged the client $5700 for the brief.
Both posts have lengthy comment threads (Volokh’s is longer), with a great many defenders of the attorney — not for the billing, but for submitting the brief. Many are also upset (rightfully so, to my mind) with the court’s apparent position that copying a string citation, including parenthetical comments, is plagiarism.
A couple of interesting comments, apparently on this last point, from the Volokh post (with links — gotta watch that attribution!):
From wm13: “What might happen to all those judges who tell counsel to write an order and they will sign it? What about an appellate court which finds a brief convincing and uses some of its phraseology in its opinion?”
From Happyshooter: “All appellate court opinions around here would be plagiarism under that standard.”
DJR says that if the standards cited by the judge apply, “there are hundreds of judges who will need to start citing the bench memos and draft briefs written by their clerks so as not to intentionally pass off their “creative expressions” and ‘original ideas’ as their own.”
Bruce Hayden (or someone posting as him), who has an eponymous blog raises a question in the Volokh comments of relevance to alternative billing:
But when it comes to the client’s benefit, a plagiarized brief, article, etc. may be advantageous – if the attorney is honest about what he charges his clients.
For example, let us assume that an attorney can write a brief from scratch in ten hours or plagiarize it from someone else’s for two hours of work. I would sugest then that the client is typically better off if his attorney plagiarized AND only charged for the amount of work actually done, in this case two hours of work. So, at $100 an hour, the difference would be the client paying $1000 for the original version or $200 for the plagiarized version.
Of course, the attorney’s temptation is inevitably to charge the client for how much it would have taken to write the article from scratch (in this case $1000), even if it took much less time due to the plagiarism. But that brings us back to honesty…
I find this comment interesting because it is relevant to the rationale behind certain alternatives to the billable hour. Consider one argument for “value billing” in a manner advantageous to the attorney. Attorney completes a document for Client A using an hourly billing model that results in a bill of $3000. When Client B comes into the office needing similar work, Attorney realizes that with only minor modifications, which Attorney can make in an hour or two, the document he did for Client A will meet Client B’s needs. Realizing this, Attorney agrees to prepare the document for a flat fee of $3000. Ethical? After all, if the document is worth $3000 when produced for Client A, then isn’t it worth $3000 when prepared for Client B, even if it only takes an hour or two?
Of course, there are at least two problems with “value billing” the brief in the Iowa bankruptcy case: (1) the attorney isn’t taking advantage of his own prior work; and (2) the brief probably wasn’t of much value, as Volokh commenter Anderson points out: “But, come on, folks — you can’t possibly be zealously representing your client while submitting an article as your ‘brief,’ . . . It’s applying the rule to the facts that wins the case.”
As to copying one’s own work, Volokh commenter Justin claims that a lawyer in the Federal Circuit was sanctioned for that several years ago, but he doesn’t provide a link. I can’t imagine the lawyer in that case was sanctioned for the copying. I have to believe it had something to do with the billing.
Thanks to the (new) legal writer for providing the links.