Quote:
Originally Posted by Greedy,Greedy,Greedy
Are you thinking ethical as in a break of the Rules of Professional Conduct or ethical as in just a general bad thing to do?
If the former, what rule are you thinking of?
If the latter, there are a bunch of attorneys running around DC doing some very, very bad things these days, many of which may not run directly afoul of the Rules of Professional Conduct. I'm not sure getting academic concepts of attribution and citation into the Rules is my top priority. But, yeah, I wouldn't copy it word for word and wouldn't want one of my partners or associates to, either.
That having been said, I just sent a nasty letter to someone (a variation on a troll) making a claim against a client and it was based heavily on a brief filed in another case against the same company (with attribution, I was trying to rub in their face that I knew they were already on the hot seat for bad behavior), and I didn't have a lot of compunction about having us track another good argument pretty closely, though adding lots of detail on our own facts and trying to twist the knife a couple more times here and there.
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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.
