The Volokh Conspiracy

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Sanctions for Lawyer's Plagiarism of Opposing Side's Motion


From Stilp v. Borough of West Chester, decided Monday by Judge Gene Pratter (E.D. Pa.):

The practice of law is not easy; it demands thorough research and writing, nearly always on a deadline. A quick turnaround does not excuse a lawyer's ethical duties to the Court, and there is never an excuse for appropriating the work of another lawyer—let alone opposing counsel—and presenting it as one's own….

The underlying lawsuit involved flag-burning, of all things (see here), but this opinion stemmed from the filing of a motion in limine seeking to exclude a code enforcement officer's (Officer Gore's) testimony as to certain matters. Plaintiffs' lawyers sent a copy of the motion to the Borough's lawyer the evening before the deadline for the motions.

The next day, Ms. Munion [the lawyer for filed a motion in limine on behalf of the Borough seeking to preclude lay opinion testimony by [plaintiffs] Mr. Stilp and Mr. Connolley for essentially the same reasons that Mr. Stilp and Mr. Connolley argued Officer Gore's opinion testimony should be excluded.

The blatant similarities between these two motions and the accompanying briefs are inescapable. Nearly every paragraph of Ms. Munion's motion and brief contain language lifted word-for-word from Mr. Stilp and Mr. Connolley's motion. That this was the product of plagiarism is apparent from the fact that Ms. Munion's motion and brief even reproduce three editing errors—two missing closed quotation marks and a missing space—from Mr. Stilp and Mr. Connolley's filings. Compare Defs.' Mot. in Lim., Doc. No. 21, at ECF 1, 6, with Pls. Mot. in Lim. ¶ 1, Doc. No. 30. It also appears that, in her rush to submit her brief by the Court's deadline, Ms. Munion failed to change the names of the parties in several places, such that the brief as filed decries the failure of the Borough (her client) to produce and serve documents on the Plaintiffs. In light of these telltale markers, there can be no serious argument that Ms. Munion's filings were not the product of plagiarism.

Nor does Ms. Munion deny the allegations. At an emergency hearing held on September 22, 2022, Ms. Munion admitted—after some initial reticence—that her motion and brief were indeed copied. {Though Ms. Munion's evasiveness does not alter the Court's decision to impose sanctions or its assessment of reasonable attorney's fees, the Court nonetheless notes its strong disfavor. A lawyer's duty of candor to the Court includes the duty to own up to their mistakes. Baseless, reflexive denials of clear ethical violations serve only to waste time and resources, usually at the lawyer's own expense, and do nothing to advance a client's interests. Indeed, such an approach serves only to dig deeper the hole in which counsel has put herself.}

Once it became clear that all escape routes were foreclosed, counsel did finally acknowledge responsibility. And that at least is something. All that remains for the Court to do, then, is to determine what sanction is appropriate….

"An unacknowledged appropriation of another lawyer's work for use in court is prohibited by [Pennsylvania Rule of Professional Conduct] 3.3, which requires candor to the tribunal." Chalepsis v. Karloutsos (E.D. Pa. 2022) (citing Conboy v. U.S. Small Bus. Admin. (3d Cir. 2021) (finding that "the copy-and-paste jobs before [the Court of Appeals] reflect[ed] a dereliction of duty, not an honest mistake" and granting a motion for sanctions)). Plagiarism also "constitutes misrepresentation and is therefore a violation of [Pennsylvania Rule of Professional Conduct] 8.4(c)." Venesevich v. Leonard (M.D. Pa. Dec. 19, 2008). By falsely presenting opposing counsel's work to the Court as her own, Ms. Munion has demeaned our profession, obstructed the administration of justice, and needlessly consumed the time and resources of both the Court and opposing counsel.

Ms. Munion's conduct also does a disservice to her client. Pennsylvania Rule of Professional Conduct 1.1 requires lawyers to provide "competent representation to a client," which "requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Pa. R. Prof'l Conduct 1.1. Plagiarism, in contrast, requires little to no knowledge or skill, and certainly does not reflect the thoroughness and preparation clients expect from members of the bar. In substituting plagiarism for preparation, counsel presented an unreasoned, error-filled filing and placed both her client's motion and the potential for alternative resolution at risk.

In deciding to impose sanctions under its inherent authority, the Court is guided by the same considerations applicable under Rule 11. Because Ms. Munion's conduct was objectively unreasonable in light of her ethical obligations, the Court finds that sanctions focused on counsel—not her client—are clearly warranted.

The court awarded plaintiffs' lawyers, Aaron D. Martin and Sarah E. Straub, $8,483.55 in fees and costs (though it reduced their original request by $2,256, because

[T]he copying was so blatant that the Borough's counsel could never have seriously contested the allegation…. Ms. Munion's plagiarism was neither slight nor subtle, and counsel for Mr. Stilp and Mr. Connelly would have reasonably been able to bring it to the Court's attention without the need for quite as exhaustive a review of the filings, drafting, redrafting, and conferencing.

See also this decision in a different case, which cites still more such decisions.

Note that plagiarism in lawyering is judged by different standards from plagiarism in academic life. For instance, when a lawyer copies material from a law firm colleague's old motion, and properly adapts it for the new motion, that's considered wise use of time and the client's money, not plagiarism. (That's so even if the original author isn't credited; litigation is generally about winning, not about getting and giving credit.) Yet if I were to copy material from another professor, even with the original author's permission, and submit it as part of my law review article, that would be plagiarism.

On the other hand, massive copying from the other side's work product does seem likely to arouse judges' ire, and understandably so. And failing to properly adapt the language to fit your client and your facts makes it even more unprofessional.