Is it an ethics violation for a New York lawyer to copy from other sources without attribution in a brief or court filing?

Plain-English summary

The opinion addresses whether a lawyer's verbatim use of another's writing, without attribution, in a brief or litigation filing violates the Rules. It concludes that such copying is not always per se deceptive under Rule 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. The opinion distinguishes litigation writing from academic writing, whose purposes and norms differ, and is skeptical of decisions treating any unattributed copying as inherently deceitful.

The opinion concludes that, under specific circumstances, lifting language from source materials without attribution may violate other Rules, including those requiring competence and diligence and forbidding frivolous filings. It identifies several non-deceptive reasons a lawyer might omit a citation, such as not wanting to flag adverse but non-binding statements in the quoted source, while noting that extreme inattention can itself implicate the Rule 1.1(a) competence duty.

The opinion concludes by noting that, although there is no clear consensus of judicial authority or controlling rule in New York, many courts have disapproved of extensive copying in briefs. It observes that, in the era of electronic databases, opposing counsel and courts can readily identify unattributed copying, with a resulting risk of a loss of credibility for the drafting lawyer and prejudice to the client, separate from whether the conduct technically violates Rule 8.4(c) or court sanction rules.

In practice

Under this opinion, as the New York rules stood at the time, the absence of a per se rule does not make unattributed copying safe. The opinion holds that copying without attribution is not a per se Rule 8.4(c) violation, but that in specific circumstances it may violate other Rules, including Rule 1.1(a) (competence), Rule 1.3 (diligence), Rule 3.1 (non-meritorious contentions), and Rule 3.3 (conduct before a tribunal). The opinion holds that lawyers should ensure compliance with those Rules when copying from other sources, and notes that many courts disapprove of extensive copying.

Common questions

Q: Is copying from another brief without attribution automatically an ethics violation?

A: No. The opinion concludes that copying without attribution in litigation filings is not a per se violation of Rule 8.4(c), because it is not always deceptive.

Q: Could it still violate the Rules?

A: Yes, depending on circumstances. The opinion concludes that unattributed copying may, under specific circumstances, violate Rules requiring competence and diligence and forbidding frivolous filings, and it cautions lawyers to comply with Rules 1.1(a), 1.3, 3.1, and 3.3.

Q: Is copying from a judicial opinion treated the same as copying from another brief?

A: The opinion draws a distinction. It strongly urges lawyers not to omit citations when copying, particularly where the source is a published writing or judicial opinion, as opposed to a prior brief.

Q: What practical risk does the opinion flag beyond discipline?

A: Loss of credibility. The opinion notes that electronic databases make unattributed copying easy to detect, creating a risk of a material loss of credibility for the lawyer and prejudice to the client even absent formal sanctions.

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 8.4(c) (dishonesty, fraud, deceit, or misrepresentation, analogous to Model Rule 8.4(c)), read together with Rule 1.1(a) (competence), Rule 1.3(b) (diligence), Rule 3.1 (non-meritorious claims and contentions), and Rule 3.3(a) (candor toward the tribunal). The Model Rule analogues are Model Rules 8.4, 1.1, 3.1, and 3.3.

Citations and references

Rules of Professional Conduct:

• NY RPC 8.4(c) (dishonesty, deceit, misrepresentation)
• NY RPC 1.1(a) (competence); NY RPC 1.3(b) (diligence)
• NY RPC 3.1 (non-meritorious contentions); NY RPC 3.3(a) (candor to the tribunal)
• MR 8.4, MR 1.1, MR 3.1, MR 3.3 (Model Rule analogues)

Cases:

• In re Ayeni, 822 A.2d 420 (D.C. 2003), discipline for copying a codefendant's brief and misrepresenting authorship
• In re Lamberis, 93 Ill. 2d 222 (1982), academic plagiarism warranting discipline

See also

• NYC Bar Ethics Op. 2019-1: Defining ex parte proceeding under Rule 3.3(d)
• ABA Formal Op. 98-412: Disclosure when a client violates a court order

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2018-3-ethical-implications-of-plagiarism-in-court-filings/