Paul L. Caron
Dean


Monday, September 10, 2007

Judge Orders Attorney to Take PR Course in Law School After Billing Client $5,700 for Brief Copied Verbatim from Article on Internet

Eugene Volokh flagged this fascinating recent case, In re Burghoff, No. 05-10947 (Bankr. Ct., S.D. Iowa 8/21/07):

The Court set a sanctions hearing concerning Mr. Cannon upon concluding that he may have filed two briefs which incorporated unattributed material from a scholarly article. ...

Mr. Peter Cannon, a West Des Moines, Iowa attorney, represented Defendant John Petit in an adversary proceeding initiated by Trustee to uncover assets of the Theodore Burghoff bankruptcy estate. ...

After reading both briefs filed by Mr. Cannon, and concluding that both contained an extraordinary amount of research, the Court directed Mr. Cannon to certify the author or authors of the two briefs. On December 22, 2006, Mr. Cannon certified that while he had prepared both briefs, he had "relied heavily" on an article written by others. The article upon which Mr. Cannon relied is Why Professionals Must Be Interested in "Disinterestedness" Under the Bankruptcy Code, May 2005, ("the Article") by William H. Schrag and Mark C. Haut, two attorneys of the New York office of Morgan, Lewis & Bockius LLP. The Court located this article on the internet. Mr. Cannon fails to acknowledge or cite this article in either brief.

Seventeen of the nineteen total pages in the pre-hearing brief are verbatim excerpts from the Article. Mr. Cannon added some introductory material, a one-page section titled "Argument," and a conclusion. In between the introduction and argument, most of the first twenty pages of the Article are reproduced verbatim. The twenty pages Mr. Cannon reproduced appear as they did in the Article, with slight variations in formatting of the type that result when material is copied from one electronic document into another. ...

Mr. Cannon appeared before the Court for the hearing on sanctions on June 21, 2007. He informed the Court that he found the Schrag and Haut Article on the Internet, and planned to use it as the framework for his brief. He concedes he "stepped over the line" by copying the text into the pre-hearing brief without making greater modifications. ...

At the Court's request, Mr. Cannon has reported to the Court the total amount which he charged his client for the preparation of both briefs. Mr. Cannon billed his client a total of $5,737.50 for these services. ...

Mr. Cannon admits he committed plagiarism when he filed the pre-hearing brief, though he minimizes his mistake by characterizing it as a failure to make greater changes to the borrowed material. The circumstances are similar to Lane, where the Iowa Supreme Court ruled that an attorney who filed a brief containing eighteen pages "cherry-picked" from a legal treatise had committed plagiarism warranting disciplinary action. [Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. Lane, 642 N.W.2d 296, 300 (2002).] In filing the pre-hearing brief containing about twenty pages of unattributed material, Mr. Cannon committed an equivalent act of plagiarism. Mr. Cannon's statement that his modifications simply fell short misses the point. Mr. Cannon's ethical shortcoming was in misrepresenting Schrag and Haut's work as his own, and not in failing to adequately disguise their authorship. ...

Mr. Cannon's second violation of the Iowa Rules of Professional Conduct was in charging his client $5,737.50 for 25.5 hours of work in preparing the two briefs. This amount is unreasonable given the actual labor Mr. Cannon invested in these projects. ... Mr. Cannon billed his client for 25.5 hours of work to prepare the two briefs. Because he could not have expended that number of hours in locating the Article, copying it into his word processing program, and adding what little material he did, his fees are far in excess of what other lawyers would charge for this amount and type of work. ...

Because Mr. Cannon does not appreciate the nature of plagiarism, a continuing education class will not cure his ethical shortcomings. Mr. Cannon's deficiency calls for the more-involved method of instruction offered in a law school course on professional responsibility. Mr. Cannon may complete the course at an accredited law school or arrange for private instruction from a professor of one of these institutions. Mr. Cannon's act of unreasonably billing his client for the plagiarized briefs justifies an additional sanction of disgorgement. ...

WHEREFORE, the Court finds Attorney Peter Cannon violated the Iowa Rules of Professional Conduct and Local Rule 83.2(g) by plagiarism and unreasonable billing for plagiarized material.

FURTHER, Attorney Cannon shall complete a law school or equivalent course in professional responsibility on or before August 31, 2008.

FURTHER, Attorney Cannon shall disgorge fees charged to Defendant John Petit for this work. This is deemed completed unless it is determined that waiver of fees did not in fact occur.

FURTHER, Mr. Cannon shall formally notify the authors of the Article of these proceedings and provide this Court with a copy of said correspondence.

https://taxprof.typepad.com/taxprof_blog/2007/09/judge-orders-at.html

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» Bills client $5,700 for brief copied off Internet from Overlawyered
Ah, but knowing which material to plagiarize -- that's the skill the client is really paying for, right? But an Iowa court wasn't pleased with West Des Moines lawyer Peter Cannon's conduct, and ordered him... [Read More]

Tracked on Sep 11, 2007 6:43:05 PM

» When Lawyers Don't Write from Appealing in Nevada
If you think your legal writing prof was kidding about the importance of attributing sources for your work (and indeed, the importance of actually writing, rather than copying, your briefs), consider this stern admonishment from a bankruptcy court in... [Read More]

Tracked on Sep 18, 2007 2:25:09 PM

Comments

Well your blog got linked to on fark.com
which should insure that Mr. Cannon's
fame (or infamy) is spread far and wide, lol.

Posted by: rob | Sep 10, 2007 10:32:08 AM

As a law student currently in research and writing I find the article informative and hilarious.

Posted by: Ken | Sep 10, 2007 1:25:53 PM

AWESOME! I LOVE that he got nailed. Serves him right!

Posted by: Karah | Sep 10, 2007 1:50:21 PM

What - this doesn't happen every day, in every city across the country?

Posted by: joe | Sep 10, 2007 1:59:07 PM

DUH:

it is a lawyer, this isn't news, just SOP. And just like any other lawyer, he is only sorry he got caught.

And besides Big business and other lawyers, no one likes, respects or cares about lawyers.

I have only met one lawyer that didn't deserve to be tossed out of a 14th story window, and a short 2 years after I met him, he did stuff that made him deserve it

Posted by: Soupgoblin | Sep 10, 2007 3:30:42 PM

As a law student in Research and writing I am getting a kick out of this. I wonder would he have used ALWD or Bluebook?

Posted by: Ken | Sep 10, 2007 4:28:48 PM

I understand the over-billing aspect of this violation, once we get beyond that, who cares if the attorney plagiarised from another brief or a law review article? Briefs aren't written for class credit, or for publication, or to show the rest of the world how smart you are. So long as the plagiarist does enough research to make sure s/he isn't feeding bad case law to the judge, who cares? Briefs are written for one purpose and one purpose only: to persuade the judge to rule in favor of your client. What's next? Will contract lawyers have to start dropping footnotes and cite to each other for the long-winded boilerplate they put into their contracts? Silly.

Posted by: jake | Sep 10, 2007 4:41:51 PM

Three comments:

(1) Hurrah for the bankruptcy judge.

(2) As this is the TaxProf Blog, one might observe that statistics show that something over 90 percent of litigated federal tax disputes get litigated in the bankruptcy courts.

(3) I post this comment as Jake with an upper-case "J" and have no idea who the lower-case "jake" above is.

Posted by: Jake | Sep 10, 2007 7:11:39 PM

How is this plagraism? Law is based on precedent. Citing previous legal cases, judgements, awards, is the norm. It validates a lawyers argument when he uses material from previous work...In this case the Judge seems to be the person who doesn't understand the nature of precendent and taht clear citations of referenced material need not always be included.

If this same lawyer had quoted the Magna Carta and cited the historical document, the Judge probably would have berated him for unneccessary citations.

What this lawyer did that was so wrong, was get a Judge with a Personality disorder.

Posted by: China Tattler | Sep 10, 2007 7:32:00 PM

Ha. The entire legal profession plagiarizes on a daily basis. Almost every pleading filed has portions that were cut-and-pasted from a previously-written pleading. Why reinvent the wheel? And many times, a defendant's counsel will simply copy word-for-word a motion that is filed by his or her co-defendant's counsel. Again, this goes on every day in every law office, so I have to think that the Court in this case was far more upset with his overbilling than his plagiarism.

Posted by: John | Sep 10, 2007 7:40:48 PM

"And many times, a defendant's counsel will simply copy word-for-word a motion that is filed by his or her co-defendant's counsel."

I had a co-defendant recently do this to me. He copied and pasted my brief verbatim, just swapping the names of clients. I was kind of flattered that he chose to copy my brief (a third similarly situated co-defendant was represented by a larger firm), until he attempted to seek indemnification from my client for the costs of preparing the brief. When I mentioned that this might create an awkward situation for him with his client if he persisted, he eventually backed down.

Posted by: MB | Sep 11, 2007 7:27:44 AM

Schrag is at Dewey Ballantine

Posted by: amg | Sep 11, 2007 7:37:53 AM

I don't like the extent to which this judge went. The plagiarism claim is not as bad as the bills. I can see the judge being upset with the bills, but every day lawyers adopt reasoning and, while perhaps not verbatim, arguments they obtain from hornbooks. The violation was simply not citing the source. The lawyer was fully entitled to use the article as much as he deemed it in his client's best interest. I think the issue gets convoluted when the judge and lawyer start going back and forth on how much he modified (or didn't modify) the language of the other lawyers' briefs. The question should have been one of proper reference thereto in citation, not in plagiarism as the practice of law necessitates the use of other people's work, court citations, and reusing every bit of information available to you. Westlaw is now trying to provide the briefs and pleadings of every case they have on file going back to 2003. So now you tell me the lawyers that use these briefs and pleadings are going to have to cite to other like briefs and pleadings that the lawyers obtain from Westlaw? The real issue here is the bill and a minor infraction for failing to cite to the article. Nothing more. I hope judges aren't getting so out of touch they are willing to continue to act in the manner this judge did. If so, clients can fully expect to pay more and more for everything they obtain. My best operating agreement is one I found in a litigation matter that another lawyer prepared and I modified only a little. While I don't bill my clients for preparing operating agreements from the one that I found from the ground up, should I be citing the other lawyer now? This is getting silly.

Posted by: scott | Sep 11, 2007 9:16:24 AM

I just read the article this guy copied. He was stupid not to just cite to it. Further, his bill was ridiculous. This is just a citation issue, not a plagiarism issue. The brief was really well written.

Posted by: scott | Sep 11, 2007 9:20:13 AM

Article made it to Digg.com and Reddit.com also. Hopefully the 6 degrees of separation will doom Mr. Peter Cannon, a West Des Moines, Iowa attorney to his comeuppance.

Posted by: stopthescammers | Sep 11, 2007 11:56:32 AM

I feel that this client was overcharged for the srvices rendered. My question is why is this legal as long as it is cited.

Jackie
Detroit

Posted by: Jackie | Nov 13, 2007 9:27:31 AM