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Brief Plagiarism Suit Could Inspire Copycat Claims Against Attorneys

September 25th, 2016 Alexander No comments

Newegg Inc. claimed that Ezra Sutton, a New Jersey IP attorney, violated its copyright in an opening appeals brief filed in the Federal Circuit in September 2014.

Newegg was a defendant in a patent case along with Sutton’s client, Sakar International Inc., and the parties had discussed their respective strategies as a filing deadline approached.

After Sutton declined to join Newegg’s brief, Newegg shared a draft with Sutton in order to help him prepare. But a day before the deadline, and before Newegg filed its final version, Sutton filed his own brief, which was nearly identical to Newegg’s draft, including drafting errors. Newegg registered a copyright on the brief and filed suit.

Although this case may seem like an anomaly, experts say that hurling accusations of copied briefs and plagiarism at fellow lawyers may be a new weapon for vexatious attorneys.

U.S. District Judge Terry J. Hatter ruled that Sutton failed to establish a prima facie case that the copying constituted fair use. Further, “Given that Sutton copied most, if not all, of the substantive portions of the draft brief, and that Sutton’s use of the draft brief was not transformative, this factor weighs heavily in favor of Newegg,” the judge said.

While ethics bodies give wide leeway to “borrowing” legal writings, experts said this litigation could inspire other lawyers to register copyrights on their work.

“That is something that concerns me about this, and I think it would be a terrible use of judicial time to have to try to figure out who really wrote what in a brief, and a waste of lawyers’ time,” said one expert.

“A competent lawyer can say, ‘Here’s a perfectly good brief that gets us into court, gets our case started, so let’s use it,’ and that’s just being efficient,” he continued.

However, another expert focused on whether the lawyer who plagiarized had overbilled the client for underlying research, had tried to mislead the judge with overlapping arguments or filings, or failed to diligently represent the client.

Unless there is a serious breach, lawyers typically aren’t hit with disciplinary actions, because legal documents are rarely expected to be fully “original” works. Judges themselves often cut and paste extensively from previous decisions or from previous filings in the same matter.

“Lawyers have always lifted from briefs, but there has to be a line somewhere between a few paragraphs and a wholesale lifting of a brief,” another expert said.

For more information, see Law360.