Plagiarism Panic Hits The Courtroom (Again), And It’s Still Nonsense

Let’s get one thing straight: there are many ways for a lawyer to mess up a case. You can miss deadlines. You can ignore counsel. You can forget to ask for an extension until after the clock hits zero. All of these, by the way, happened in the San Juan climate suit according to the judge. But you know what’s not a cardinal sin?

Copying from a public court filing.

As Law360 and the ABA Journal reported, U.S. District Judge Aida Delgado-Colón took a scorched-earth approach in an April 9th order, tearing into attorney David Efron for — among other issues — “plagiarism” in his complaint. Which shouldn’t be a thing.

“San Juan’s 241-page complaint is almost a word-for-word carbon copy of the original complaint filed in the Municipalities’ Case,” the judge wrote, referencing another lawsuit filed by other Puerto Rican cities as a putative class action against fossil fuel companies for causing climate change damages felt by the towns. It seems that Puerto Rico’s capital city decided to get in on the action a year after the fact and filed its own case. Along the way it cribbed heavily from the earlier complaint. Or, as the order puts it, the case “presents an astonishing example of plagiarism in the legal profession.”

But… who cares?

Here, Attorney Efron lifted not only the entire theory of San Juan’s case from the Municipalities’ Case but went so far to use virtually the very same words and ideas, usurping the thought processes and legal theories a client hires an attorney to develop and perform. The Court finds that this conduct runs afoul not only of Attorney Efron’s duty of competence to his client, but also his duty of candor to the Court. 

Balderdash.

The defendants are the same. The basic factual allegations are the same. Efron reused a model that was working and applied it to his own client’s case. Was it elegant? No. Does he deserve some shade for failing to diligently change every reference across the 241-page document that only applied to the first action (such as failing to remove stray plurals or the use of the term “class action”)? Yes. But the mere act of copying a publicly filed document is not some sort ethical black hole.

Casting your client as a carbon copy of an earlier, favorable case is the whole point of a common law system. Lawyers aren’t ethically obligated to generate bespoke, artisanal complaints for each client. Once it lands on a docket, it is — and should be — public domain.

This is like a football coach complaining to the league that no one can run the halfback dive because you did it first. Much like football, the play may look identical on the greaseboard, a whole lot happens when it makes its way onto the field. The runner is different, the blockers are different, the situation may be different, the weather conditions may be different. Football is just not played on paper.

Likewise, a complaint is not the sum total of a lawsuit. This guy copied from another complaint… he’s still got to deal with discovery on his own, which will influence later motions, which he will then orally argue on his own. It’s not stealing food from another lawyer’s mouth to have the same or even substantially similar language and legal theories.

This came up before when a boutique firm tried to copyright its legal brief and then sued Winston & Strawn for “stealing” it. As explained at the time, the legal foundation for asserting copyright over a publicly filed brief is… weak:

White v. West DOES say that briefs can be subject to copyright, but it’s about Westlaw publishing — and therefore profiting off — publicly filed legal briefs. Nothing about the logic of the case would carry over to filing a copycat brief. Moreover, the White court concluded that while briefs are theoretically copyrightable, publishing them on Westlaw amounted to fair use, so even in that extreme circumstance the authoring lawyers had no copyright case.

Newegg is closer, involving attorneys in the same matter where the defendant lawyer ripped off materials after declining to join a joint defense agreement and therefore stealing the work without contributing to the preparation costs.

Except the crucial distinction in Newegg is that the lawyer lifted from a draft brief. Had the work product already entered the public record, it’s hard to imagine the same outcome. The facts are so specific that the attorney in Newegg is on record that “I offered someone a steak dinner if this case was ever cited or helped make anyone any money.”

Also unlike Newegg, Efron claims that he’s working with the other plaintiffs. Per the ABA Journal:

“There was no plagiarism,” Efron says. The plaintiffs in both cases “are collaborating for the same cause in the interest of controlling climate change. The judge without even conferring with counsel rushed to judgment without knowing that counsel in both cases are collaborating.”

Even if San Juan’s posture risked undermining the class action, the copycat complaint would only help the original plaintiffs by confirming that there’s a lot of similarly situated class members.

The opinion rails about plagiarism but doesn’t add much to the already weak legal case against it here. The touchstone of plagiarism is lack of attribution. As in law school, passing someone else’s work off as one’s own is wrong as a matter of fact and professional ethics.

But it’s not law school. Law school is about gauging individual knowledge mastery. Lawyering is about getting the right result and lawyers aren’t obligated to invent new legal theories just because someone else with the same issue got there before.

Courts have not wavered in admonishing or even sanctioning litigants who copy whole sections of judicial opinions without providing attribution.

Sure, but think about why that would happen. Lawyers generally want to be backed by cited opinion, and in the cases where they try to pawn off reasoning without crediting the court it’s an effort to sidestep negative treatment. That is misleading. But this lawyer is pretty openly asserting that the other plaintiffs are right.

They have done the same in relation to plagiarism of articles written by scholars or legal professional [sic].

Again, citing authority is distinct from asserting advocacy.

Court [sic] have also called out the copy-pasting of briefs in one case for use in another without due care to adapt the same to the circumstances of the case.

Yes, but it’s the second part of that sentence that matters. There’s nothing wrong with copying unless the copy doesn’t fulfill the lawyer’s duty to represent the client well. Judge Delgado-Colón can absolutely hammer those mistakes without trying to bolt on an inapposite plagiarism framework.

“The misconduct is taking another lawyer’s work for a different client, filing it verbatim in this case — apparently without due review or regard for the client’s specific circumstances — and on top of all that, doing so without attribution.”

The ONLY part that should matter is between the em-dashes. There’s no support for the idea that legal filings can’t copy other legal filings without attribution nor could there be because the only two cases that actually grappled with that don’t really apply.

Taking another attorney’s work product without attribution, adopting it wholesale as the foundation of your client’s case, and subsequently submitting plagiarized briefs certainly would throw any attorney’s Rule 11(b) certification into serious doubt. Here, that is exactly what Attorney Efron did, and it should merit either the imposition of monetary sanctions, disciplinary action, or both.

Rule 11 is about making sure the claims are warranted by existing law and that factual allegations have evidentiary support. The original complaint in this case asserts facts and legal theories about harm done to cities in Puerto Rico. San Juan says it’s a city in Puerto Rico — CHECKS OUT — and the same things happened to it. Litigation is not a literary originality test. If the prior filing was itself well-supported and valid (and no one seems to be arguing otherwise), then adapting it doesn’t violate Rule 11. Failing to exercise the proper diligence to adapt it where daylight does exist between the clients may raise ethical issues but merely copying it does not.

“Attention to other matters in his book of business did not relieve Attorney Efron from his duty to exercise a minimum degree of diligence…”

You can’t be MIA during motion practice and expect judges to be chill about it. Fair.

This is all supercharged by the looming presence of generative AI. The value-add of this technology is going to be taking lessons learned from the vast stockpile of past filings and producing quality, actionable work product more efficiently. But at its core the technology is about informed copying. And just like this cases, the ethical lapse in all the “Stupid AI Tricks” cases is not in the copying but in the lack of care when it comes to proofreading.

Lawsuits are underway claiming that these models are giant copyright violations. Personally, I don’t think training necessarily amounts to a copyright violation any more than everything I write is a toxic melange of inspiration from books I’ve read since childhood. But putting that aside, the uptick in buzz around “pleading plagiarism” seems like a misguided effort to bring the anti-AI copyright fight to publicly filed legal documents — a context where intellectual property never mattered before. Even if that’s not the reason for this heightened interest, it’s a reason for courts to reject this framing in the legal context where it could compromise the development of tools that can make law more efficient and potentially more accessible.

If we start punishing lawyers for copying structure, arguments, and language from previous successful pleadings, we aren’t promoting ethics — we’re promoting inefficiency and risk getting the case wrong for style points.

(Order on the next page…)

Earlier: Boutique Sues Winston & Strawn For Violating ‘Copyright’ In Rule 12 Brief

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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