When is Imitation No Longer Flattering?

As children, we learned that plagiarism is a big “no, no.”  As lawyers, we learned that reinventing the wheel is a waste of precious time and resources.  Our clients often come to us with a set of terms and conditions or simple contracts that they have pieced together from information that they downloaded from the internet, or from prior agreements.  So, when does “borrowing” from a different agreement cross the line and become “not ok.”  The issue was recently addressed by Judge Clarkston in In re Summit Fin., Inc., 2021 Bankr. LEXIS 3077.

The “offending” document in that matter was a “disclaimer” that bankruptcy counsel filed on the behalf of the debtor which related to the debtor’s bankruptcy schedules that are required to be filed pursuant to the bankruptcy code.  The disclaimer asserted that: (1) the debtor had no duty to ensure the documents were accurate; (2) the debtor had no duty to update or correct the documents; and (3) if any changes were made, the debtor had no duty to inform any creditors, even if they were impacted by the change.

Judge Clarkston noted that the broad disclaimers were contrary to the Bankruptcy Code – a debtor in possession (as was the debtor in that case) is a fiduciary to its creditors and has an ethical obligation to ensure that its schedules are up to date and any changes are disclosed to the creditors.  As such, the disclaimers were ethically inappropriate, which prompted Judge Clarkston to issue an Order to Show Cause (“OSC”) why the debtor should not be removed as the debtor-in-possession and/or the case converted to Chapter 7.

At the OSC hearing, the debtor’s attorney acknowledged that he copied and pasted the disclosures from a different case.  And so, the question was asked – is copying and pasting other attorneys’ work plagiarism, and even if it is not, is it an ethical violation?

Judge Clarkston pointed out that lawyers have access to so many resources through hornbooks and treatises and drafting guides.  The law itself is derived from citing to prior judges’, law clerks’ and attorneys’ work product.  However, Judge Clarkston drew the important distinction between inappropriately copying, and “copy[ing] smart.”  In other words, when using another author’s text as “inspiration,” make sure to update the factual analysis to align with the specific facts at issue in your case.  To this point, he refers to Lindsay Lohan v. Perez, et al., 924 F. Supp. 2d 447 (E.D.N.Y. 2013), in which the Opposition filed by the defendants was discovered to be completely copied from unidentified sources, which caused the attorneys to be sanctioned.

As such, you don’t have to reinvent the wheel – if someone articulated the law or language in a way you love, feel free to use it.  But make sure you “copy smart,” and take the time to conduct your own analysis and update the facts to be applicable to your matter.  Further, make sure you check that it is still good law, and be sure to give credit where it is due.  The “prose” written by some other source can come in handy, the key is to use it smart and ethically.