Doesn’t Matter Who Wins the K Race; We’re All the Same

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

I was once in a room with the head of a large class action firm. Dude was scanning a Bloomberg screen, picked up the phone and demanded an associate file a complaint in some securities thing. "Just copy Milberg's."

I just assumed that all fungible work is copied. I filed a novel complaint in a class action (written to keep the claim out of the MDL) a few years later and gave a copy to someone at another firm in Word format to use. I assumed everyone shared that kind of stuff. People shared stuff with me. Seemed impolite not to do so. We were both on same side, so it could only help.

What I think differentiates the briefing in Flynn's case is:

1. This is Judge Sullivan, who flies off the handle a lot and doesn't seem entirely stable (Sometimes, it's warranted, like the Ted Stevens case, where he wound up causing a couple prosecutors to lose their jobs; Sometimes it's not -- like when he flipped out on prosecutors during Manafort's trial and had to apologize later);
2. These guys copied verbatim. Everybody knows everybody lifts from other briefs to save time. You can't ethically charge clients to re-engineer that which you can easily copy. But there's an expectation you'll at least reorder the sentences, omit an authority or two... rewrite the thing a bit so it isn't nakedly obvious lifting. Verbatim regurgitation is lazy, and it's daring a firebrand like Sullivan.

I think a complaint (or a contract) is different because the words themselves have legal import, while a brief is an argument about the law. I don't think it's a huge ethical violation (and GGG, I don't know the applicable rules) but I think Sullivan was essentially embarrassing them for copying someone else's homework -- I don't think he's going to report them to the Bar for plagiarism.