Coming off our month long Judge Drake Series, I sat down this morning to comb through Westlaw for new Subchapter V opinions. I found a couple, but they can wait. What really got my attention was an opinion from Bankruptcy Judge Scott Clarkson (C.D. Cal). The case is In re Summit Financial, Inc., 2021 WL 5173331 (Bankr. C.D. Cal. Nov. 5, 2021). You can find the opinion here.
We attribute Judge Clarkson as having issued the very first substantive Subchapter V opinion. Technically, his November opinion relates to a Sub V debtor, but the issue is far more universal, and kind of scary, too: Is it ever plagiarism or, at least, unethical to copy/paste from other attorneys’ pleadings? Possibly.
Using Global Notes with Bankruptcy Schedules
Summit Financial owns seven nail salons in Orange County, California. It filed a Subchapter V bankruptcy due to accumulated rent balances on the salons’ leases. A few weeks into the case, it filed 44 pages of schedules and statements. The first 10 pages consisted of “Global Notes.” While you’ll often find global notes in mega cases (i.e., pages and pages of boilerplate disclaimers for the schedules), Summit is, as Judge Clarkson scolds, “not General Motors.” It scheduled just $175,000 in assets and $1.6 million in liabilities.
I can recall using global notes in just two cases. In the first case, there was so much civil and criminal litigation pending that bare schedules under oath without disclaimers seemed very dangerous. In the second case, there were so many § 541 issues, related disputed claims and contingencies, and potential estoppel traps that disclaimers seemed unavoidable. Were they lifted from other cases? Of course they were.
To be sure, my colleagues dislike global notes and I’ve even had a United States Trustee tell me that she ignores them outright.
Unfortunately for Summit Financial, Judge Clarkson did not ignore them. Instead, he scheduled a show cause hearing to determine whether, because of the Global Notes’ contents, the debtor should “be removed as debtor in possession, or alternatively, why the case should not be converted or dismissed.” The Global Notes had the debtor and its professionals disclaiming any obligation to make sure the schedules were accurate, to correct them if they were inaccurate, or to notify parties about any changes to them.
Of course, those disclaimers run counter to a debtor’s and its professionals’ fiduciary duties. Hence the show cause order.
To try and remedy the situation, debtor’s counsel admitted that he had taken notes used in other cases and adapted them. In the process, he had overlooked the erroneous and ill-advised disclaimers. Thus, he apologized and amended the schedules accordingly.
Ethical Considerations in the Use of Copy/Paste
Ultimately, but “with very limited cause,” Judge Clarkson vacated his show cause order, deciding instead to revisit the issue “at the time of professional compensation review.” But before doing so, he addressed two issues that counsel’s mea culpa revealed:
Is copying and pasting significant text from another law firm’s pleading into your own plagiarism, and even if not, is it ethical?
Yikes. Is there a litigation practice area that employs forms and the like more than we employ them in bankruptcy?
On the one hand, Judge Clarkson cites two cases—Lindsay Lohan v. Perez and Kim v. Westmoore Partners. In both cases, counsel had lifted substantially all of their respective briefs from other briefs or “unidentified, unattributed sources.” In the former, the court fined counsel $750, justifying the “relatively modest amount” based on the additional “negative impact on [the lawyer’s] reputation and livelihood that will inevitably arise from her involvement in this situation.” Double yikes. In the latter, the court fined counsel $10,000. There was accompanying bad faith and other misbehavior in both cases, but each court determined that “plagiarism” in litigation is “unacceptable” and “sanctionable.”
(The craziest part of Lohan is that the co-counsel who filed the plagiarized brief quickly became adverse, arguing about which of them was responsible for filing it and how much fault should be allocated among them. The court’s answer was simple: you sign, you pay.)
On the other hand, Judge Clarkson cites to an article, by two law professors, titled “The Problem of Plagiarism as an Ethics Offense.” It, too, cited some troubling litigation plagiarism cases, including one where the subject brief was of such an “unusually high caliber” that the judge made the lawyer certify that he actually authored it. Ouch.
The article is short and worth reading (and good news for lawyers). The professors distinguish between litigation and academia; explain how “originality” is not all that important in litigation beyond citing published materials; and explain how “sole authorship” doesn’t really exist in litigation given how a team of lawyers (or judges and their clerks) produce legal content.
In short, the professors view the plagiarism issue this way:
[W]e question the practices of labeling attorney copying, even without acknowledgment, as plagiarism, and treating it as a per se ethics violation. We argue, instead, that analysis of copying in the context of litigation should focus directly on the quality of the filing at issue and the competence and diligence of the lawyer who prepared it.
Anyone who believes that it’s a good idea to copy and paste from another firm’s brief in another case without attribution, or to rely on boilerplate language without careful vetting, is probably unable to prepare and present as good an argument as the original drafter.
At a minimum, then, a lawyer must make sure that the copied material is “relevant, accurate, and up to date.” So, let that be a warning.
12/13/21 Update: The ABA has also covered this topic, here and here, and comes down pretty similarly on the issue.
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