Last October, I blogged about “Lies, damned lies, and then there’s plagiarism.” I noted instances where plagiarizing lawyers and even one Filipino judge had been caught up in the supposed manufacture of mendaciously misrepresented manuscripts.
The incidence of lawyers finding trouble over unattributed language in briefs and pleadings is legion. And while every once in a while, the lack of candor to the tribunal in representing another’s work as one’s own raises a court’s ire, what really gets that tenderest gland in the ringer is when a plagiarizing lawyer has chutzpah to claim beaucoup hours in reimbursable attorney’s fees for pleadings containing another person’s work.
Ignorance no excuse.
In Iowa Supreme Court Board of Professional Ethics & Conduct v. Lane, 642 N.W.2d 296 (Iowa 2002), the Court didn’t buy the ignorance as an excuse invoked by lawyer William Lane to defend himself from ethical misconduct charges. These stemmed from his having plagiarized from a treatise to file a post-trial brief.
And in one of the more oft-cited lawyer discipline cases involving plagiarism, there was the Illinois Supreme Court case, In Re Lamberis, 93 Ill 2d 222 (1982) where the Court censured lawyer Anthony Byron Lamberis for academic plagiarism. Lamberis plagiarized from two published works to prepare his master’s thesis for his L.L.M. program at Northwestern Law School.
He was caught and expelled. But unsatisfied with taking just one pound of flesh when they could take more, Northwestern promptly ‘dropped a dime’ on Lamberis with the Illinois Attorney Registration and Disciplinary Commission.
He went as far as to say that the state’s disciplinary board could point to “no modern authority in this State which would support this court in disciplining attorneys for conduct arising outside the practice of law when that conduct is considered deceitful and immoral but not criminal.”
Not so fast said the Court, citing several cases of attorneys who had been disciplined “for conduct arising outside the practice of law,” including for such things as failing to file tax returns or for false testimony before a U.S. Senate Subcommittee.
The Court majority wrote that “In imposing discipline in this case we do not intend to imply that attorneys must conform to conventional notions of morality in all questions of conscience and personal life. “We are charged with the responsibility of supervising the professional conduct of attorneys practicing in this State, and we are interested in their private conduct only in so far as such relates to their professional competence or affects the dignity of the legal profession.” In re Serritella (1955), 5 Ill.2d 392, 398.
“In this case, sanctions are appropriate and required because both the extent of the appropriated material and the purpose for which it was used evidence the respondent’s complete disregard for values that are most fundamental in the legal profession.”
Although 2 justices dissented and wanted a 3 month suspension, Lamberis was only censured for his plagiarism, even though the majority characterized it as “an extreme cynicism towards the property rights of others.”
No “clear and convincing” evidence of knowingly engaged dishonesty.
Which finally gets us to Scott McInnis. Last year, the plagiarism case of the Colorado politician, lawyer, and wanna-be governor was front and center.
Unfortunately for his gubernatorial campaign, he got caught up in the muck and murk over allegations he had ‘borrowed’ several paragraphs verbatim from a 1984 water rights essay written by a judge about the Green Mountain Reservoir.
What made the case especially juicy to his opponents was that McInnis was paid a rather tidy $300,000 as part of the writing project for the Hasan Family Foundation.
Wearing the hairshirt.
And while to his credit, it seemed McInnis had donned the Cilice, he was quick to also force the hairshirt on his research assistant. See “McInnis Says Plagiarism Was Mistake“ and the “Hasan Foundation demands full repayment from McInnis for plagiarized articles.”
Regardless of McInnis’ ‘mea culpas,’ Colorado Ethics Watch asked the Colorado Supreme Court Office of Attorney Regulation Counsel to investigate McInnis over possible ethical impropriety.
And after a purported 8-month investigation and despite McInnis’ public admissions and apologies, the result was summed up by the headline, “Scott McInnis plagiarism scandal no big deal to attorney discipline czar.”
Blogger Alan Prendergast in a Denver Westword Blogs news item elaborated that “In a letter to [Ethics Watch] dated May 20, Regulation Counsel John S Gleason concludes that there is no “clear and convincing evidence Mr. McInnis knowingly engaged in dishonest conduct” because the incorporation of Hobbs’ work was done by his research assistant, Rollie Fisher, despite cautions from McInnis not to plagiarize. Furthermore, McInnis produced e-mails that indicated he’d told the Hasans that he’d retained Fisher to help him prepare the articles.” Read correspondence from the Office of Attorney Regulation Counsel here.
Gleason is the lawyer discipline savant imported from Colorado to Arizona to sniff out possible ethical misconduct wafting from the orificial offices of former Maricopa County Attorney Andrew Thomas and his minions. See “Colorado’s Discipline ‘Guru’ finds Andrew Thomas discipline-worthy.”
Never an intent to plagiarize.
But funny how intent always raises its pretty little head in cases involving plagiarism just like with misrepresentation and garden variety dishonesty.
Intent was even invoked most recently, in the defense of self-beleaguered actress Lindsay Lohan over a necklace she says she only borrowed from the jewelry store and had no intent to steal.
As I wrote in October, “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.‘“
So as concerns the findings and the disposition of the McInnis case, Ethics Watch has now been satisfied, even issuing a May 23, 2011 statement on receipt of Gleason’s letter, “Ethics Watch Responds To McInnis Investigation Report.”
But McInnis’ gubernatorial supporters remain even more bereft over what might’ve been.