“Plagiarism is rightfully a mortal sin in academic settings, where original expression is paramount. Litigation is different with far more room for borrowing ideas and writings. . . “
Benjamin G. Shatz and Colin McGrath
The use of artificial intelligence (“AI”) to assist lawyers in their legal practice has brought to the fore some interesting legal and ethical implications. One of which is plagiarism. While practicing law, plagiarism is encouraged, not frowned upon. Attorneys commonly use and are expected to use templates, forms, and especially boilerplate language in their pleadings and transactional documents (without citations). Many legal service providers sell form books to attorneys with the expectation that the material will be used repeatedly by the lawyer without citation. Many associates have written a brief, motion, summary judgment, or memorandum of law only to have the partner or senior lawyer at the firm sign the pleading without attribution to the original author. Many firms have brief and motion banks and instruct and expect their attorneys to use them. Better yet, many law clerks write opinions for the judges they serve. Many judges who issue opinions without the benefit of law clerks borrow from their prior opinions or from other opinions written by a different judge. Indeed, the common law system is based upon precedent, encouraging repeated use of the same work. In some cases, not using forms or boilerplate language may be legal malpractice. In essence, good lawyering is not in an academic bubble, where citation to an original work is expected, and, if not correctly cited, is, as Mr. Shatz and Mr. McGrath stated, “a mortal sin.” Schatz and McGrath “Beg, Borrow and Steal,” 26 California Litigation 3 (2013).
Of course, this customary practice has many benefits for the client, which is of paramount ethical importance for lawyers. Rather than reinvent the wheel for each and every client, an attorney can provide better and more economical services to their clients by repeatedly using motions, pleadings, and legal arguments that have proven successful for them and others. This is not to say that originality in the practice of law is not good. Rather, many clients simply cannot afford, and lawyers do not have the time for originality in every pleading.
There are a few court cases where a lawyer has been sanctioned for plagiarism in their pleadings. Broadly speaking, the courts’ objections concerned the word-for-word use of entire sections of treatises or another lawyer’s brief without proper citation. One of those cases cited Rule 11 of the Federal Rules of Civil Procedure, and another case cited ABA Model Rule 8.4, “Misconduct.” After a search, the only opinion from the Maryland State Bar Association Committee on Ethics I could find concerning the topic of plagiarism was from 1998. See Ethics Docket No. 1998-16. That case involved a lawyer who had admitted to plagiarizing an article published in a bar association publication. The issue was not whether the lawyer violated an ethical rule; it was whether the executive committee of the bar had a legal obligation to report the lawyer to the Attorney Grievance Commission. The Committee opined that the individual members of the bar association executive committee must “decide for themselves whether the conduct constitutes a reportable violation of the which ‘raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.’” Id.
Caution should be practiced when a lawyer uses the work of others, whether by form, template, boilerplate language, or otherwise, to determine whether the words are relevant to the case at hand. Adapting the original material to the unique facts and circumstances of your case may be necessary, and case citation validation is a must. Citation to the original author may not be required in your pleadings, but beware of copying large sections of treatises or briefs of another’s work, word for word, without attribution, or it may cause unexpected or detrimental consequences. The use of AI is no different than printed form. Responsibility should be exercised when relying upon AI for better or more expedient service for your client. Check and double-check the source of the material and validate, validate, validate before use in your pleadings or other notable work.