Let’s
get
one
thing
straight:
there
are
many
ways
for
a
lawyer
to
mess
up
a
case.
You
can
miss
deadlines.
You
can
ignore
counsel.
You
can
forget
to
ask
for
an
extension
until
after
the
clock
hits
zero.
All
of
these,
by
the
way,
happened
in
the
San
Juan
climate
suit
according
to
the
judge.
But
you
know
what’s
not
a
cardinal
sin?
Copying
from
a
public
court
filing.
As
Law360
and
the
ABA
Journal
reported,
U.S.
District
Judge
Aida
Delgado-Colón
took
a
scorched-earth
approach
in
an
April
9th
order,
tearing
into
attorney
David
Efron
for
—
among
other
issues
—
“plagiarism”
in
his
complaint.
Which
shouldn’t
be
a
thing.
“San
Juan’s
241-page
complaint
is
almost
a
word-for-word
carbon
copy
of
the
original
complaint
filed
in
the
Municipalities’
Case,”
the
judge
wrote,
referencing
another
lawsuit
filed
by
other
Puerto
Rican
cities
as
a
putative
class
action
against
fossil
fuel
companies
for
causing
climate
change
damages
felt
by
the
towns.
It
seems
that
Puerto
Rico’s
capital
city
decided
to
get
in
on
the
action
a
year
after
the
fact
and
filed
its
own
case.
Along
the
way
it
cribbed
heavily
from
the
earlier
complaint.
Or,
as
the
order
puts
it,
the
case
“presents
an
astonishing
example
of
plagiarism
in
the
legal
profession.”
But…
who
cares?
Here,
Attorney
Efron
lifted
not
only
the
entire
theory
of
San
Juan’s
case
from
the
Municipalities’
Case
but
went
so
far
to
use
virtually
the
very
same
words
and
ideas,
usurping
the
thought
processes
and
legal
theories
a
client
hires
an
attorney
to
develop
and
perform.
The
Court
finds
that
this
conduct
runs
afoul
not
only
of
Attorney
Efron’s
duty
of
competence
to
his
client,
but
also
his
duty
of
candor
to
the
Court.
Balderdash.
The
defendants
are
the
same.
The
basic
factual
allegations
are
the
same.
Efron
reused
a
model
that
was
working
and
applied
it
to
his
own
client’s
case.
Was
it
elegant?
No.
Does
he
deserve
some
shade
for
failing
to
diligently
change
every
reference
across
the
241-page
document
that
only
applied
to
the
first
action
(such
as
failing
to
remove
stray
plurals
or
the
use
of
the
term
“class
action”)?
Yes.
But
the
mere
act
of
copying
a
publicly
filed
document
is
not
some
sort
ethical
black
hole.
Casting
your
client
as
a
carbon
copy
of
an
earlier,
favorable
case
is
the
whole
point
of
a
common
law
system.
Lawyers
aren’t
ethically
obligated
to
generate
bespoke,
artisanal
complaints
for
each
client.
Once
it
lands
on
a
docket,
it
is
—
and
should
be
—
public
domain.
This
is
like
a
football
coach
complaining
to
the
league
that
no
one
can
run
the
halfback
dive
because
you
did
it
first.
Much
like
football,
the
play
may
look
identical
on
the
greaseboard,
a
whole
lot
happens
when
it
makes
its
way
onto
the
field.
The
runner
is
different,
the
blockers
are
different,
the
situation
may
be
different,
the
weather
conditions
may
be
different.
Football
is
just
not
played
on
paper.
Likewise,
a
complaint
is
not
the
sum
total
of
a
lawsuit.
This
guy
copied
from
another
complaint…
he’s
still
got
to
deal
with
discovery
on
his
own,
which
will
influence
later
motions,
which
he
will
then
orally
argue
on
his
own.
It’s
not
stealing
food
from
another
lawyer’s
mouth
to
have
the
same
or
even
substantially
similar
language
and
legal
theories.
This
came
up
before
when
a
boutique
firm
tried
to
copyright
its
legal
brief
and
then
sued
Winston
&
Strawn
for
“stealing”
it.
As
explained
at
the
time,
the
legal
foundation
for
asserting
copyright
over
a
publicly
filed
brief
is…
weak:
White
v.
West DOES
say
that
briefs
can
be
subject
to
copyright,
but
it’s
about
Westlaw
publishing
—
and
therefore
profiting
off
—
publicly
filed
legal
briefs.
Nothing
about
the
logic
of
the
case
would
carry
over
to
filing
a
copycat
brief.
Moreover,
the White court
concluded
that
while
briefs
are
theoretically
copyrightable,
publishing
them
on
Westlaw
amounted
to
fair
use,
so
even
in
that
extreme
circumstance
the
authoring
lawyers
had
no
copyright
case.
Newegg is
closer,
involving
attorneys
in
the
same
matter
where
the
defendant
lawyer
ripped
off
materials
after
declining
to
join
a
joint
defense
agreement
and
therefore
stealing
the
work
without
contributing
to
the
preparation
costs.Except
the
crucial
distinction
in Newegg is
that
the
lawyer
lifted
from
a
draft
brief.
Had
the
work
product
already
entered
the
public
record,
it’s
hard
to
imagine
the
same
outcome.
The
facts
are
so
specific
that
the
attorney
in Newegg is
on
record
that
“I
offered
someone
a
steak
dinner
if
this
case
was
ever
cited
or
helped
make
anyone
any
money.”
Also
unlike
Newegg,
Efron
claims
that
he’s
working
with
the
other
plaintiffs.
Per
the
ABA
Journal:
“There
was
no
plagiarism,”
Efron
says.
The
plaintiffs
in
both
cases
“are
collaborating
for
the
same
cause
in
the
interest
of
controlling
climate
change.
The
judge
without
even
conferring
with
counsel
rushed
to
judgment
without
knowing
that
counsel
in
both
cases
are
collaborating.”
Even
if
San
Juan’s
posture
risked
undermining
the
class
action,
the
copycat
complaint
would
only
help
the
original
plaintiffs
by
confirming
that
there’s
a
lot
of
similarly
situated
class
members.
The
opinion
rails
about
plagiarism
but
doesn’t
add
much
to
the
already
weak
legal
case
against
it
here.
The
touchstone
of
plagiarism
is
lack
of
attribution.
As
in
law
school,
passing
someone
else’s
work
off
as
one’s
own
is
wrong
as
a
matter
of
fact
and
professional
ethics.
But
it’s
not
law
school.
Law
school
is
about
gauging
individual
knowledge
mastery.
Lawyering
is
about
getting
the
right
result
and
lawyers
aren’t
obligated
to
invent
new
legal
theories
just
because
someone
else
with
the
same
issue
got
there
before.
Courts
have
not
wavered
in
admonishing
or
even
sanctioning
litigants
who
copy
whole
sections
of
judicial
opinions
without
providing
attribution.
Sure,
but
think
about
why
that
would
happen.
Lawyers
generally
want
to
be
backed
by
cited
opinion,
and
in
the
cases
where
they
try
to
pawn
off
reasoning
without
crediting
the
court
it’s
an
effort
to
sidestep
negative
treatment.
That
is
misleading.
But
this
lawyer
is
pretty
openly
asserting
that
the
other
plaintiffs
are
right.
They
have
done
the
same
in
relation
to
plagiarism
of
articles
written
by
scholars
or
legal
professional
[sic].
Again,
citing
authority
is
distinct
from
asserting
advocacy.
Court
[sic]
have
also
called
out
the
copy-pasting
of
briefs
in
one
case
for
use
in
another
without
due
care
to
adapt
the
same
to
the
circumstances
of
the
case.
Yes,
but
it’s
the
second
part
of
that
sentence
that
matters.
There’s
nothing
wrong
with
copying
unless
the
copy
doesn’t
fulfill
the
lawyer’s
duty
to
represent
the
client
well.
Judge
Delgado-Colón
can
absolutely
hammer
those
mistakes
without
trying
to
bolt
on
an
inapposite
plagiarism
framework.
“The
misconduct
is
taking
another
lawyer’s
work
for
a
different
client,
filing
it
verbatim
in
this
case
—
apparently
without
due
review
or
regard
for
the
client’s
specific
circumstances
—
and
on
top
of
all
that,
doing
so
without
attribution.”
The
ONLY
part
that
should
matter
is
between
the
em-dashes.
There’s
no
support
for
the
idea
that
legal
filings
can’t
copy
other
legal
filings
without
attribution
nor
could
there
be
because
the
only
two
cases
that
actually
grappled
with
that
don’t
really
apply.
Taking
another
attorney’s
work
product
without
attribution,
adopting
it
wholesale
as
the
foundation
of
your
client’s
case,
and
subsequently
submitting
plagiarized
briefs
certainly
would
throw
any
attorney’s
Rule
11(b)
certification
into
serious
doubt.
Here,
that
is
exactly
what
Attorney
Efron
did,
and
it
should
merit
either
the
imposition
of
monetary
sanctions,
disciplinary
action,
or
both.
Rule
11
is
about
making
sure
the
claims
are
warranted
by
existing
law
and
that
factual
allegations
have
evidentiary
support.
The
original
complaint
in
this
case
asserts
facts
and
legal
theories
about
harm
done
to
cities
in
Puerto
Rico.
San
Juan
says
it’s
a
city
in
Puerto
Rico
—
CHECKS
OUT
—
and
the
same
things
happened
to
it.
Litigation
is
not
a
literary
originality
test.
If
the
prior
filing
was
itself
well-supported
and
valid
(and
no
one
seems
to
be
arguing
otherwise),
then
adapting
it
doesn’t
violate
Rule
11.
Failing
to
exercise
the
proper
diligence
to
adapt
it
where
daylight
does
exist
between
the
clients
may
raise
ethical
issues
but
merely
copying
it
does
not.
“Attention
to
other
matters
in
his
book
of
business
did
not
relieve
Attorney
Efron
from
his
duty
to
exercise
a
minimum
degree
of
diligence…”
You
can’t
be
MIA
during
motion
practice
and
expect
judges
to
be
chill
about
it.
Fair.
This
is
all
supercharged
by
the
looming
presence
of
generative
AI.
The
value-add
of
this
technology
is
going
to
be
taking
lessons
learned
from
the
vast
stockpile
of
past
filings
and
producing
quality,
actionable
work
product
more
efficiently.
But
at
its
core
the
technology
is
about
informed
copying.
And
just
like
this
cases,
the
ethical
lapse
in
all
the
“Stupid
AI
Tricks”
cases
is
not
in
the
copying
but
in
the
lack
of
care
when
it
comes
to
proofreading.
Lawsuits
are
underway
claiming
that
these
models
are
giant
copyright
violations.
Personally,
I
don’t
think
training
necessarily
amounts
to
a
copyright
violation
any
more
than
everything
I
write
is
a
toxic
melange
of
inspiration
from
books
I’ve
read
since
childhood.
But
putting
that
aside,
the
uptick
in
buzz
around
“pleading
plagiarism”
seems
like
a
misguided
effort
to
bring
the
anti-AI
copyright
fight
to
publicly
filed
legal
documents
—
a
context
where
intellectual
property
never
mattered
before.
Even
if
that’s
not
the
reason
for
this
heightened
interest,
it’s
a
reason
for
courts
to
reject
this
framing
in
the
legal
context
where
it
could
compromise
the
development
of
tools
that
can
make
law
more
efficient
and
potentially
more
accessible.
If
we
start
punishing
lawyers
for
copying
structure,
arguments,
and
language
from
previous
successful
pleadings,
we
aren’t
promoting
ethics
—
we’re
promoting
inefficiency
and
risk
getting
the
case
wrong
for
style
points.
(Order
on
the
next
page…)
Earlier:
Boutique
Sues
Winston
&
Strawn
For
Violating
‘Copyright’
In
Rule
12
Brief
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