By Pat Murphy
The Daily Record Newswire
In today’s world of copy and paste, it’s a wonder that more lawyers aren’t caught using the words of another without proper attribution.
Unfortunately for Peter Cannon, one federal judge became suspicious when he found the lawyer’s brief to be of “unusually high quality.” Those suspicions ultimately placed Cannon in jeopardy of having his law license suspended for six months.
Cannon’s travails stem from his participation in a case before a U.S. bankruptcy court in Iowa.
Cannon filed a brief in an effort to disqualify the attorneys for the bankruptcy trustee. According to court records, Cannon billed the client $5737.50 for the work.
It’s probably not the best of signs when a judge’s antennae go up because one’s brief is too good. A wise lawyer might come to the conclusion that a writing course or two might be in order.
After reading Cannon’s brief, U.S. Bankruptcy Judge Paul J. Kilberg had some questions to ask. As a matter of fact, the judge took the rather extraordinary step of ordering Cannon to certify that he was the author of the brief.
Cannon couldn’t do that because his brief contained whole passages from the article “Why Professionals Must be Interested in ‘Disinterestedness’ Under the Bankruptcy Code,” by William Schrag and Mark Haut.
Judge Kilberg later determined that 17 of the 19 pages of analysis in Cannon’s brief were copied verbatim from the article.
Caught with his hand in the cookie jar, Cannon knew better than to make matters worse by claiming the work as his own. Cannon fessed up to the plagiarism.
The lawyer admitted that his brief “exceeded permissible fair use without attestation” of the source, offering the lame excuse that he had been pressed for time in writing the document.
Seeking to ameliorate the consequences of his transgression, Cannon informed his client and reported the matter to the state bar association.
Of course, Judge Kilberg wasn’t satisfied with these steps. He ordered Cannon to disgorge his fee to the client for the preparation of the brief, which probably hurt the lawyer the most.
Then there was the obligatory order requiring Cannon to take a course in professional responsibility and notify the authors of the legal article of his plagiarism.
Cannon’s biggest problem was with the members of the state disciplinary board. Those minders of professional good behavior wanted their pound of flesh, so they imposed a six-month suspension.
Recently, the Iowa Supreme Court agreed that Cannon’s plagiarism constituted a violation of the professional rules of conduct.
“We recognize that the term ‘plagiarism’ is something of a scarlet letter that imposes a brand on a wide variety of behaviors. We do not believe our ethical rules were designed to empower the court to play a ‘gotcha’ game with lawyers who merely fail to use adequate citation methods.
“This case, however, does not involve a mere instance of less than perfect citation, but rather wholesale copying of seventeen pages of material. Such massive, nearly verbatim copying of a published writing without attribution in the main brief, in our view, does amount to a misrepresentation that violates our ethical rules,” the court said. (Iowa Supreme Court Attorney Disciplinary Board v. Cannon)
Okay, so the court got that part right. But then it went astray by vacating Cannon’s suspension and imposing a public reprimand.
The reduction in penalty is hard to understand. The court noted as an aggravating factor that Cannon has a history of prior ethical problems.
And Cannon apparently fully understood the ramifications of his conduct when he copied whole sections of the legal article.
A public reprimand simply doesn’t fit the bill when a lawyer knowingly crosses the line.
