Depending on who you ask, it was either Benjamin Disraeli or Mark Twain or someone else who thought they were first to think of it, who supposedly said, there are “Lies, Damned Lies and Statistics.”
But forget statistics. What about lies, damned lies and plagiarism?
Law school plagiarism.
I doubt it starts in law school but that’s when some ‘enterprising’ and harried future lawyers opt for the path of least resistance and begin reinventing someone else’s work as their own.
And efforts are made to arrest such inclinations through helpful articles such as, Plagiarism: A Workshop for Law Students. The article’s title, which suggests a ‘how-to’ manual on plagiarism, is actually the opposite. It gives aspiring lawyers plagiarism avoidance assistance.
It also cites Black’s Law Dictionary, which defines the dirty-deed of misrepresenting someone else’s original work as one’s own, as: “[t]he act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of one’s own mind. To be liable for plagiarism it is not necessary to exactly duplicate another’s work, it being sufficient if unfair use of such work is made by lifting of substantial portion thereof . . . .”
A confluence of circumvention.
So in a remarkable confluence of dissimulating events came recent accounts of a lawyer lifting a judge’s work; a judge lifting lawyers’ works; and of yet another judge catching a lawyer lifting work authored by other lawyers. What’s the world coming to?
Sure, politically speaking there’s always been the usual B.S. politicians spew when running for office. For instance Colorado lawyer and Republican gubernatorial candidate Scott McInnis admitted plagiarizing the writings, of all things, a state supreme court justice. In McInnis’ case, he took several paragraphs verbatim from a 1984 essay the judge had written about the Green Mountain Reservoir. The revelations were reported by CNN in Plagiarism charges dog Colorado gubernatorial candidate
Problem was McInnis used the ‘borrowed’ work to also earn $300,000 as part of a water rights writing project for a foundation.
After the media hunted him down, McInnis apologized and like any good politician, changed the subject.
Giving equal time to non-lawyers, the Democratic candidate running in Arizona against Sen. John McCain was also recently outed for plagiarism, see Rodney Glassman, Democrat in Arizona Senate Race Denies Plagiarism. And like every cookie jar-handed plagiarist, Glassman gave the same excuse everybody uses, “I would never intentionally steal anyone’s work,” he told the Associated Press.
Accidentally on purpose.
Interesting how lawyers and non-lawyers both know that an act of deception, i.e., fraud and misrepresentation, requires a willful intent to deceive the victim. So it’s hardly a surprise to hear the reflexive explanation that it was all accidental.
Call me cynical but that’s like tying a banana peel to the bottom of your shoe and then crying accident when you slip and fall.
Take, for example, the banana peel Philippine Supreme Court Associate Justice Mariano C. del Castillo ‘accidentally’ slipped on. Justice del Castillo authored an en banc opinion dismissing a motion for reconsideration, but was subsequently accused of having plagiarized sections of the opinion from a book and 2 U.S. law review articles.
On July 22, 2010, Justice del Castillo explained,“(t)here was every intention to attribute all sources whenever due. At no point was there ever any malicious intent to appropriate another’s work as our own. . . .”
The news just came down, though, that by a 10-2 decision, his fellow justices concluded the allegations against Judge del Castillo lacked merit. The “accidental removal of proper attributions to the three authors” was neither intentional nor “malicious,” they said. See Supreme Court clears Del Castillo of plagiarism.
All this accidental unintentional plagiarism reminds me of that tongue-in-cheek teacher’s retort to the misbehaving school kid, “Oh, you must’ve done it accidentally on purpose.”
Too well written to be his.
These days, technology being what it is, teachers have a fairly easy time catching students who submit work not their own. They have a fairly well-tuned B.S. detector when it comes to the work their students do. The first clue is when a latter-day Jeff Spicoli sitting in back starts writing like Spinoza or Erasmus.
Likewise, judges with any modicum of experience also develop a sense for what’s what. Iowa Bankruptcy Court Judge Paul Kilberg found one lawyer’s briefs to be of such “unusually high quality” that his suspicions were aroused enough to ask the lawyer, Peter Sean Cannon, to certify the work was his.
To his credit, Cannon fessed up, admitting he had “exceeded permissible fair use without attestation” when he borrowed from a 2005 article by lawyers Wiliam H. Schrag and Mark C. Haut, “Why Professionals Must Be Interested in “Disinterestedness” Under the Bankruptcy Code.”
The court concluded that 17 of the 19 pages of legal analysis “were verbatim excerpts from the article.” The ethical rules implicated involved dishonesty; false statement of fact or law to a tribunal; and false or misleading communication about the lawyer or lawyer’s services.
Fortunately, the court’s opinion, which can be read in its entirety at No. 10–0520 IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD v. CANNON, expressly disavowed any interest in playing a “gotcha” game with lawyers who merely fail to use adequate citation methods.” Instead, the court distinguished Cannon’s “wholesale copying of seventeen pages of material” from imperfect citation. But despite the Iowa Supreme Court Attorney Disciplinary Board’s recommendation of a 6 month suspension, the court opted instead for a public reprimand.
The first liar never stands a chance.
But in a recent essay, Off the Shelf: Trouble seeing the line between fact and fiction, by David Shields for the Los Angeles Times, Shields wondered whether the U.S. hasn’t become afflicted with an epidemic of fabrication.
In wondering about the rash of lies, damned or otherwise, he also took an unfortunate swipe at lawyers when he asked, “Why does this keep happening over and over again? Have we suddenly become a nation of liars? Of lawyers?”
Other than the obvious cheap shot taken at those so-called lips-are-moving-must-be-lying lawyers, Shields lamented not the blurring of the lines between fiction and nonfiction but the “overemphasis on the exact ‘truth,’ which is impossible to know.”
So if you can’t know truth, does this make the alternative permissible? No, what Shields is saying that since memory is faulty, there’s no such thing as nonfiction.
But I suspect that explanation along with the banana peel defense won’t get you past a lawyer disciplinary board.